WEST VIRGINIA LEGISLATURE
SENATE JOURNAL
SEVENTY-SIXTH LEGISLATURE
REGULAR SESSION, 2004
THIRTY-EIGHTH DAY
____________
Charleston, W. Va., Friday, February 20, 2004
The Senate met at 11 a.m.
(Senator Tomblin, Mr. President, in the Chair.)
Prayer was offered by Dr. D. W. Cummings, Pastor, Bethlehem
Apostolic Temple, Wheeling, West Virginia.
Pending the reading of the Journal of Thursday, February 19,
2004,
On motion of Senator Smith, the Journal was approved and the
further reading thereof dispensed with.
The Senate proceeded to the second order of business and the
introduction of guests.
Senator Tomblin (Mr. President) presented a communication from
the Court of Claims, submitting its annual report, in accordance
with chapter fourteen, article two, section twenty-five of the code
of West Virginia.
Which report was received and filed with the Clerk.
Senator Tomblin (Mr. President) presented a communication from
the Family Protection Services Board, submitting its annual report
as required by chapter forty-eight, article twenty-six, section
four hundred one of the code of West Virginia.
Which communication and report were received and filed with
the Clerk.
On motion of Senator Chafin, the Senate recessed for five
minutes to permit Joshua Goins to address the Senate on behalf of
the Frasure-Singleton Student Legislative Program and to permit
Kristen Antolini, an intern under the Frasure-Singleton Legislative
Program, to sing "God Bless America".
Upon expiration of the recess, the Senate reconvened and
resumed business under the second order.
The Senate then proceeded to the third order of business.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Com. Sub. for Senate Bill No. 258, Relating to
enforcement of domestic violence protective orders generally.
A message from The Clerk of the House of Delegates announced
the passage by that body and requested the concurrence of the
Senate in the passage of
Eng. Com. Sub. for House Bill No. 4364--A Bill to amend and
reenact §61-2-10b of the code of West Virginia, 1931, as amended,
relating to including division of forestry employees in the assault
and battery statute with similar state personnel.
Referred to the Committee on the Judiciary.
A message from The Clerk of the House of Delegates announced
the passage by that body and requested the concurrence of the
Senate in the passage of
Eng. Com. Sub. for House Bill No. 4434--A Bill to amend and reenact §49-6-1 of the code of West Virginia, 1931, as amended,
relating to expanding the possible venues where a child neglect or
abuse petition may be filed.
Referred to the Committee on the Judiciary.
A message from The Clerk of the House of Delegates announced
the adoption by that body and requested the concurrence of the
Senate in the adoption of
House Concurrent Resolution No. 42--Suspending a provision of
Joint Rule 3, relating to the limitation on the period permitted
for extending the Committee of Conference as to Com. Sub. for H. B.
4022, Creating "The All-Terrain Vehicle Safety Regulation Act".
Resolved by the Legislature of West Virginia, two thirds of
the members of each house agreeing thereto:
That the three-day time limitation imposed by Joint Rule 3 be
hereby suspended and that the same be hereby extended for a period
of six additional days, expiring on Thursday, February 26, 2004,
for the express purpose of consideration of matters in disagreement
between the two houses as to Com. Sub. for H. B. 4022.
At the request of Senator Chafin, and by unanimous consent,
the message was taken up for immediate consideration and reference
of the resolution to a committee dispensed with.
The question being on the adoption of the resolution (H. C. R.
No. 42), the same was put.
On this question, the yeas were: Boley, Bowman, Caldwell,
Chafin, Deem, Dempsey, Facemyer, Fanning, Guills, Harrison,
Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith,
Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr.
President)--32.
The nays were: None.
Absent: Bailey and Edgell--2.
So, two thirds of all the members present and voting having
voted in the affirmative, the President declared the resolution (H.
C. R. No. 42) adopted.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
The Senate proceeded to the fourth order of business.
Senator Rowe, from the Joint Committee on Enrolled Bills,
submitted the following report, which was received:
Your Joint Committee on Enrolled Bills has examined, found
truly enrolled, and on the 19th day of February, 2004, presented to
His Excellency, the Governor, for his action, the following bill,
signed by the President of the Senate and the Speaker of the House
of Delegates:
(Com. Sub. for S. B. No. 251), Establishing Nurse Overtime and
Patient Safety Act.
Respectfully submitted,
Larry L. Rowe,
Chair, Senate Committee.
Sharon Spencer,
Chair, House Committee.
Senator Plymale, from the Committee on Education, submitted the following report, which was received:
Your Committee on Education has had under consideration
Senate Bill No. 165, Simplifying state higher education
tuition and fee system.
And reports back a committee substitute for same with the
following title:
Com. Sub. for Senate Bill No. 165 (originating in the
Committee on Education)--A Bill to repeal §18B-10-3, §18B-10-4a and
§18B-10-10 of the code of West Virginia, 1931, as amended; to amend
and reenact §18B-10-1, §18B-10-2, §18B-10-4, §18B-10-4b, §18B-10-5,
§18B-10-6, §18B-10-7a, §18B-10-8, §18B-10-9, §18B-10-11,
§18B-10-12, §18B-10-13, §18B-10-14 and §18B-10-15 of said code; to
amend said code by adding thereto a new section, designated
§18B-10-1b; and to amend and reenact §18C-3-1 of said code, all
relating to tuition and fee simplification for public higher
education; repealing obsolete language; creating classifications of
fees; authorizing user fee for library services under certain
circumstances; authorizing deferred payment plans for students;
requiring maintenance of support for certain instructional and
student activities; clarifying authority of commission to enter
into trust agreements; clarifying purposes for which fees may be
used; deleting certain restrictions on bookstore sales; and
clarifying terms and conditions for the health education student
loan program.
With the recommendation that the committee substitute do pass;
but under the original double committee reference first be referred to the Committee on Finance.
Respectfully submitted,
Robert H. Plymale,
Chair.
At the request of Senator Helmick, as chair of the Committee
on Finance, unanimous consent was granted to dispense with the
second committee reference of the bill contained in the foregoing
report from the Committee on Education.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Senate Bill No. 420, Relating to motor fuel excise tax.
And reports back a committee substitute for same with the
following title:
Com. Sub. for Senate Bill No. 420 (originating in the
Committee on Finance)--A Bill to amend and reenact §11-14C-6,
§11-14C-7, §11-14C-9, §11-14C-13, §11-14C-20, §11-14C-22,
§11-14C-24, §11-14C-25, §11-14C-26, §11-14C-29, §11-14C-30,
§11-14C-31, §11-14C-34, §11-14C-37 and §11-14C-47 of the code of
West Virginia, 1931, as amended, all relating generally to motor
fuels excise tax; requiring tax on unaccounted-for motor fuel
losses be calculated using invoiced gallons; changing aircraft fuel
to aviation fuel to be consistent with definitions; repealing five
hundred gallon-minimum purchase by government entities to qualify
for exemption; clarifying bond requirements; specifying election by
supplier for motor fuel exported to another state; requiring that all reports and returns, except those filed by terminal operators,
specify invoiced gallons; requiring all reports and returns filed
by terminal operators specify gross and net gallons; requiring use
of machine-generated shipping documents and authorizing
commissioner to allow use of manually prepared shipping documents;
requiring use of diversion procedure if destination state changes
prior to transport leaving rack; correcting reference to section
requiring return information; authorizing refunds for motor fuel
used for agricultural purposes and clarifying time for claiming
refunds; correcting reference authorizing inspections; and
establishing a revolving fund for general administration of taxes.
With the recommendation that the committee substitute do pass.
Respectfully submitted,
Walt Helmick,
Chair.
Senator Prezioso, from the Committee on Health and Human
Resources, submitted the following report, which was received:
Your Committee on Health and Human Resources has had under
consideration
Senate Bill No. 439, Relating to compulsory immunization of
school children.
And reports the same back with the recommendation that it do
pass; but under the original double committee reference first be
referred to the Committee on Finance.
Respectfully submitted,
Roman W. Prezioso, Jr.,
Chair.
At the request of Senator Helmick, as chair of the Committee
on Finance, unanimous consent was granted to dispense with the
second committee reference of the bill contained in the foregoing
report from the Committee on Health and Human Resources.
Senator Minard, from the Committee on Banking and Insurance,
submitted the following report, which was received:
Your Committee on Banking and Insurance has had under
consideration
Senate Bill No. 450, Relating to long-term care insurance
policies.
And reports the same back with the recommendation that it do
pass.
Respectfully submitted,
Joseph M. Minard,
Chair.
Senator Kessler, from the Committee on the Judiciary,
submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Senate Bill No. 459, Providing civil immunity to certain
volunteers who build or install universal accessibility features.
And reports back a committee substitute for same with the
following title:
Com. Sub. for Senate Bill No. 459 (originating in the
Committee on the Judiciary)--A Bill to amend and reenact §5-11A-5
of the code of West Virginia, 1931, as amended, relating to providing immunity from civil damages to a worker, contractor,
engineer or architect who, in good faith, provides services or
materials, without remuneration, to build or install certain
universal accessibility features in accordance with applicable
state and federal laws.
With the recommendation that the committee substitute do pass.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
Senator Minard, from the Committee on Banking and Insurance,
submitted the following report, which was received:
Your Committee on Banking and Insurance has had under
consideration
Senate Bill No. 506, Permitting use of "bank" in name of
licensed insurance company.
And has amended same.
And,
Senate Bill No. 517, Relating to standard nonforfeiture law
for individual deferred annuities.
And has amended same.
And reports the same back with the recommendation that they
each do pass, as amended.
Respectfully submitted,
Joseph M. Minard,
Chair.
Senator Kessler, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Senate Bill No. 529, Repealing section of code relating to
working prisoners by county courts.
And reports the same back with the recommendation that it do
pass.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
Senator Kessler, from the Committee on the Judiciary,
submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Senate Bill No. 533, Authorizing division of corrections
charge offenders transfer application fee.
And,
Senate Bill No. 565, Allowing game proceeds to be transferred
between raffle and bingo accounts.
And reports the same back with the recommendation that they
each do pass; but under the original double committee references
first be referred to the Committee on Finance.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
The bills, under the original double committee references,
were then referred to the Committee on Finance.
Senator Minard, from the Committee on Banking and Insurance, submitted the following report, which was received:
Your Committee on Banking and Insurance has had under
consideration
Senate Bill No. 556, Exempting certain retailers from
definition of credit services organizations.
And has amended same.
And reports the same back with the recommendation that it do
pass, as amended; but under the original double committee reference
first be referred to the Committee on the Judiciary.
Respectfully submitted,
Joseph M. Minard,
Chair.
The bill, under the original double committee reference, was
then referred to the Committee on the Judiciary, with an amendment
from the Committee on Banking and Insurance pending.
Senator Edgell, from the Committee on Agriculture, submitted
the following report, which was received:
Your Committee on Agriculture has had under consideration
Eng. Com. Sub. for House Bill No. 4096, Increasing the
veterinary fee for each cat and dog vaccinated for rabies.
And reports the same back with the recommendation that it do
pass; but under the original double committee reference first be
referred to the Committee on Finance.
Respectfully submitted,
Larry J. Edgell,
Chair.
The bill, under the original double committee reference, was
then referred to the Committee on Finance.
The Senate proceeded to the sixth order of business.
On motions for leave, severally made, the following bills and
joint resolution were introduced, read by their titles, and
referred to the appropriate committees:
By Senators Hunter and Plymale:
Senate Bill No. 580--A Bill to amend the code of West
Virginia, 1931, as amended, by adding thereto a new article,
designated §8-15B-1, §8-15B-2, §8-15B-3, §8-15B-4 and §8-15B-5, all
relating to meeting and conference rights for members of police or
fire departments employed by political subdivisions; providing for
the right of these members to self-organization; allowing
designation of an exclusive representative agent; imposing a duty
to meet and confer with employees; allowing deduction of employee
organization dues and assessments; providing for compulsory
arbitration of disputes; listing prohibited acts; allowing hearing
before civil service commission; providing judicial review;
specifying powers and duties of the civil service commission; and
allowing injunctive relief.
Referred to the Committee on the Judiciary; and then to the
Committee on Finance.
By Senator Harrison (By Request):
Senate Bill No. 581--A Bill to amend and reenact §11-8-16 and
§11-8-17 of the code of West Virginia, 1931, as amended; and to
amend and reenact §13-1-7 of said code, all relating to requiring that levy and bond elections be held on the same days as primary
and general elections are held.
Referred to the Committee on the Judiciary.
By Senator Bowman:
Senate Bill No. 582--A Bill to amend and reenact §51-9-6, §51-
9-6a and §51-9-6b of the code of West Virginia, 1931, as amended,
all relating to the judges' retirement system; and providing that
a judge of a court of record first elected to the office after the
first day of July, two thousand four, shall have his or her
retirement benefit calculated on the basis of his or her salary at
the time of retirement; and, irrespective of any salary increases
that may be granted to active members of the judiciary, the retired
judge's benefit may not be increased unless expressly provided for
by legislative enactment.
Referred to the Committee on Pensions; and then to the
Committee on Finance.
By Senators Hunter and Caldwell:
Senate Bill No. 583--A Bill to amend the code of West
Virginia, 1931, as amended, by adding thereto a new section,
designated §15-2-20a, relating to requiring the state police to
station at least three officers in any county with a regional jail
facility or correctional facility.
Referred to the Committee on the Judiciary; and then to the
Committee on Finance.
By Senator Minard:
Senate Bill No. 584--A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new section,
designated §17C-3-10, relating to making it a crime to alter a
traffic-control device with an infrared or electronic device; and
providing for penalties.
Referred to the Committee on the Judiciary.
By Senator Ross:
Senate Bill No. 585--A Bill to amend and reenact §38-14-4 and
§38-14-5 of the code of West Virginia, 1931, as amended, all
relating to the self-service storage lien act; providing for an
increase in late fees; shortening the time to be considered in
default; adding sale by private auction as well as public auction;
and shortening the time that personal property may be sold at a
public or private auction.
Referred to the Committee on the Judiciary.
By Senators Tomblin (Mr. President), Caldwell, Dempsey,
Minard, Minear, Rowe, Smith, Unger and Hunter:
Senate Bill No. 586--A Bill to amend the code of West
Virginia, 1931, as amended, by adding thereto a new chapter,
designated §44C-1-101, §44C-1-102, §44C-1-103, §44C-1-104, §44C-1-
105, §44C-1-106, §44C-1-107, §44C-1-108, §44C-1-109, §44C-1-110,
§44C-1-111, §44C-1-112, §44C-2-201, §44C-2-202, §44C-2-203, §44C-2-
204, §44C-3-301, §44C-3-302, §44C-3-303, §44C-3-304, §44C-3-305,
§44C-4-401, §44C-4-402, §44C-4-403, §44C-4-404, §44C-4-405, §44C-4-
406, §44C-4-407, §44C-4-408, §44C-4-409, §44-4-410, §44C-4-411,
§44C-4-412, §44C-4-413, §44C-4-414, §44C-4-415, §44C-4-416, §44C-4-
417, §44C-5-501, §44C-5-502, §44C-5-503, §44C-5-504, §44C-5-505, §44C-5-506, §44C-5-507, §44C-6-601, §44C-6-602, §44C-6-603, §44C-6-
604, §44C-7-701, §44C-7-702, §44C-7-703, §44C-7-704, §44C-7-705,
§44C-7-706, §44C-7-707, §44C-7-708, §44C-7-709, §44C-8-801, §44C-8-
802, §44C-8-803, §44C-8-804, §44C-8-805, §44C-8-806, §44C-8-807,
§44C-8-808, §44C-8-809, §44C-8-810, §44C-8-811, §44C-8-812, §44C-8-
813, §44C-8-814, §44C-8-815, §44C-8-816, §44C-8-817, §44C-9-901,
§44C-10-1001, §44C-10-1002, §44C-10-1003, §44C-10-1004, §44C-10-
1005, §44C-10-1006, §44C-10-1007, §44C-10-1008, §44C-10-1009, §44C-
10-1010, §44C-10-1011, §44C-10-1012, §44C-10-1013, §44C-11-1101,
§44C-11-1102, §44C-11-1103, §44C-11-1104, §44C-11-1105 and §44C-11-
1106, all relating to the uniform trust code.
Referred to the Committee on Interstate Cooperation; and then
to the Committee on the Judiciary.
By Senator Kessler:
Senate Bill No. 587--A Bill to amend the code of West
Virginia, 1931, as amended, by adding thereto a new section,
designated §61-2-30, relating to railroad employees; and
establishing criminal penalties for interfering with medical
treatment of a railroad employee injured during the course of
employment.
Referred to the Committee on the Judiciary.
By Senator Chafin:
Senate Bill No. 588--A Bill to amend and reenact §5-10B-4 of
the code of West Virginia, 1931, as amended, relating to
contributions to government employee deferred plans.
Referred to the Committee on Pensions; and then to the Committee on Finance.
By Senators White, Caldwell, Rowe, Oliverio and Hunter:
Senate Bill No. 589--A Bill to amend and reenact §10-1-12 of
the code of West Virginia, 1931, as amended, relating to increasing
the size of the library commission to ten members; and requiring
that one member of the library commission be a blind person.
Referred to the Committee on Government Organization; and then
to the Committee on Finance.
By Senators Kessler, McKenzie and Bowman:
Senate Bill No. 590--A Bill to amend and reenact §62-11B-7a of
the code of West Virginia, 1931, as amended, relating to
designating local community criminal justice boards as a home
incarceration supervisor.
Referred to the Committee on the Judiciary.
By Senators Prezioso, Sharpe, Boley, Unger, Oliverio, Bowman,
McCabe, Snyder, Kessler, Ross, Sprouse, Minear, Love, Dempsey,
Minard, Plymale, Jenkins, Facemyer, Bailey, Weeks, Guills, Helmick
and Caldwell:
Senate Bill No. 591--A Bill to amend and reenact §30-1-7a of
the code of West Virginia, 1931, as amended, relating to continuing
education requirements for certain licensed health care
professionals and requiring completion of two hours of continuing
education course work in the subject of end-of-life care including
pain management before their licenses may be renewed.
Referred to the Committee on Health and Human Resources.
By Senators Hunter, Minear, Facemyer, Minard, Sharpe, White, Love, Rowe, Caldwell and Jenkins:
Senate Bill No. 592--A Bill to amend and reenact §18-5-44 of
the code of West Virginia, 1931, as amended, relating to allowing
certain rural counties with limited availability of day care
facilities to continue providing early childhood education programs
to three-year-olds.
Referred to the Committee on Education; and then to the
Committee on Finance.
By Senator Snyder:
Senate Bill No. 593--A Bill to amend and reenact §18-5-18b of
the code of West Virginia, 1931, as amended, relating to county
boards of education; and requiring reimbursement from funds
appropriated to the state department of education for the full cost
of providing school counselors at each public school in the county.
Referred to the Committee on Education; and then to the
Committee on Finance.
By Senators Weeks, Minear and Smith:
Senate Bill No. 594--A Bill to amend the code of West
Virginia, 1931, as amended, by adding thereto a new article,
designated §7-5B-1, §7-5B-2, §7-5B-3, §7-5B-4, §7-5B-5, §7-5B-6 and
§7-5B-7; to amend said code by adding thereto a new article,
designated §8-13C-1, §8-13C-2, §8-13C-3, §8-13C-4, §8-13C-5,
§8-13C-6 and §8-13C-7; to amend said code by adding thereto a new
section, designated §11-1C-1c; to amend said code by adding thereto
a new section, designated §11-5-15; to amend and reenact §11-6-13,
§11-6-14, §11-6-15, §11-6-18, §11-6-19, §11-6-20, §11-6-21, §11-6-22 and §11-6-23 of said code; to amend said code by adding
thereto a new section, designated §11-6D-9; to amend said code by
adding thereto a new section, designated §11-6F-7; to amend said
code by adding thereto four new sections, designated §11-8-1a, §11-
8-2a, §11-8-3a and §11-8-23a; to amend and reenact §11-8-4,
§11-8-5, §11-8-6, §11-8-6a, §11-8-6b, §11-8-6c, §11-8-6d, §11-8-6e,
§11-8-6f, §11-8-12, §11-8-12a, §11-8-13, §11-8-16, §11-8-17 and
§11-8-24 of said code; to amend and reenact §11-9-2 of said code;
to amend and reenact §11-10-3 of said code; to amend said code by
adding thereto a new section, designated §11-10-11b; to amend and
reenact §11-12-1, §11-12-26 and §11-12-75 of said code; to amend
and reenact §11-13-2e and §11-13-2o of said code; to amend and
reenact §11-13A-2, §11-13A-3 and §11-13A-20a of said code; to amend
and reenact §11-13B-3 of said code; to amend said code by adding
thereto a new section, designated §11-13B-19; to amend said code by
adding thereto a new section, designated §11-13C-17; to amend said
code by adding thereto a new section, designated §11-13D-11; to
amend said code by adding thereto a new section, designated
§11-13E-8; to amend said code by adding thereto a new section,
designated §11-13F-6; to amend said code by adding thereto a new
section, designated §11-13G-6; to amend said code by adding thereto
a new section, designated §11-13J-13; to amend said code by adding
thereto a new section, designated §11-13K-7; to amend said code by
adding thereto a new section, designated §11-13N-13; to amend said
code by adding thereto a new section, designated §11-13Q-22; to
amend said code by adding thereto a new section, designated §11-13R-13; to amend said code by adding thereto a new section,
designated §11-13S-11; to amend said code by adding thereto a new
section, designated §11-15-34; to amend said code by adding thereto
a new section, designated §11-15A-30; to amend said code by adding
thereto a new article, designated §11-15C-1, §11-15C-2, §11-15C-3,
§11-15C-4, §11-15C-5, §11-15C-6, §11-15C-7, §11-15C-8, §11-15C-9,
§11-15C-10, §11-15C-11, §11-15C-12, §11-15C-13, §11-15C-14,
§11-15C-15, §11-15C-16, §11-15C-17, §11-15C-18, §11-15C-19,
§11-15C-20, §11-15C-21, §11-15C-22, §11-15C-23, §11-15C-24,
§11-15C-25 and §11-15C-26; to amend said code by adding thereto a
new section, designated §11-19-13; to amend said code by adding
thereto two new sections, designated §11-21-8i and §11-21-96; to
amend said code by adding thereto a new article, designated
§11-21A-1, §11-21A-2, §11-21A-3, §11-21A-4, §11-21A-5, §11-21A-6,
§11-21A-7, §11-21A-8, §11-21A-9, §11-21A-10, §11-21A-11,
§11-21A-12, §11-21A-13, §11-21A-14, §11-21A-15, §11-21A-16,
§11-21A-17, §11-21A-18, §11-21A-19, §11-21A-30, §11-21A-31,
§11-21A-32, §11-21A-33, §11-21A-34, §11-21A-35, §11-21A-36,
§11-21A-37, §11-21A-38, §11-21A-51, §11-21A-52, §11-21A-53,
§11-21A-54, §11-21A-55, §11-21A-56, §11-21A-57, §11-21A-58,
§11-21A-59, §11-21A-60, §11-21A-61, §11-21A-71, §11-21A-72,
§11-21A-73, §11-21A-74, §11-21A-75, §11-21A-76, §11-21A-77,
§11-21A-78, §11-21A-79, §11-21A-80 and §11-21A-81; to amend said
code by adding thereto a new section, designated §11-23-29; to
amend said code by adding thereto two new sections, designated
§11-24-23h and §11-24-43; to amend said code by adding thereto a new section, designated §11-27-37; to amend said code by adding
thereto a new article, designated §11-28-1, §11-28-2, §11-28-3,
§11-28-4, §11-28-5, §11-28-6, §11-28-7, §11-28-8, §11-28-9,
§11-28-10, §11-28-11, §11-28-12, §11-28-13, §11-28-14, §11-28-15,
§11-28-16, §11-28-17, §11-28-18, §11-28-19, §11-28-20 and
§11-28-21; and to amend said code by adding thereto a new section,
designated §17A-3-4a, all relating generally to the comprehensive
reform of the state's tax laws; granting county governments more
flexibility in raising revenues; granting municipalities more
flexibility in raising revenues; providing for the phase-out of ad
valorem taxation of tangible personal property; allocating the
revenues from ad valorem taxation of the property of public service
businesses exclusively to the state; prospectively terminating the
alternate-fuel motor vehicle tax credit; prospectively terminating
the special method for appraising qualified capital additions to
manufacturing facilities; revising the allocation of the authority
to lay levies of ad valorem property taxes; extending the
applicability of the tax crimes and penalties act to general excise
tax, progressive income tax and business activities and profits
tax; extending the applicability of the tax procedure and
administration act to general excise tax, progressive income tax
and business activities and profits tax; increasing the rate of tax
on corporations with substantial land holdings and providing a
credit against tax for severance taxes paid; phasing out business
and occupation tax on the business of gas storage; phasing down the
rate of business and occupation tax on the business of generating or selling electricity; terminating the imposition of tax on
certain health care services; phasing out telecommunications tax;
prospectively terminating the credits for business investment and
jobs expansion, industrial expansion and revitalization, research
and development, certain housing development, management
information services facilities, facilities producing coal-based
liquids, aerospace facilities and coal-loading facilities; reducing
electric and natural gas utility rates for low-income customers;
reducing telephone utility rates for low-income residential
customers, neighbor investment and agricultural equipment;
prospectively terminating the economic opportunity, strategic
research and manufacturing investment tax credits; preserving the
economic benefit of all terminated credits for taxpayers who gained
entitlement to such credits prior to their termination; terminating
consumers sales and service tax and use tax; imposing general
excise tax; terminating soft drinks tax; terminating personal
income tax; imposing progressive income tax; terminating business
franchise tax; terminating corporation net income tax; phasing out
health care provider tax; imposing business activities and profits
tax; terminating motor vehicle title privilege tax; and providing
an effective date of all such enactments based on the voters'
ratification of the fair taxation amendment to the constitution of
West Virginia.
Referred to the Committee on Finance.
By Senators White, Rowe, Love, Ross, Hunter, Caldwell and
Jenkins:
Senate Bill No. 595--A Bill to amend and reenact §5-5-2 of the
code of West Virginia, 1931, as amended, relating to granting
higher incremental salary increases to division of corrections
employees based on years of service.
Referred to the Committee on Finance.
By Senators Tomblin (Mr. President) and Kessler:
Senate Bill No. 596--A Bill to amend and reenact §29-12-5 of
the code of West Virginia, 1931, as amended, relating to the powers
and duties of the board of directors of the state board of risk and
insurance management with respect to the purchase of or contracting
for insurance on state properties, activities and responsibilities;
clarifying the power of the board to reasonably limit the amount,
kind and types of insurance and the conditions, limitations and
exclusions of such insurance covering state property, activities
and responsibilities; and giving the board of risk and insurance
management general powers to determine under what conditions an
offer of property or liability insurance coverage should be made to
a political subdivision, charitable or public service organization
or an emergency medical services agency.
Referred to the Committee on the Judiciary.
By Senators Jenkins and Plymale:
Senate Bill No. 597--A Bill to extend the time for the county
commission of Cabell County, West Virginia, to meet as a levying
body for the purpose of presenting to the voters of the county an
election on the question of continuing the excess levy for vital
public services in Cabell County from between the seventh and twenty-eighth days of March until the first Thursday in June, two
thousand four.
Referred to the Committee on Government Organization.
By Senator Hunter:
Senate Bill No. 598--A Bill to amend and reenact §24-6-12 of
the code of West Virginia, 1931, as amended, relating to removing
municipalities that operate either an emergency telephone system or
an enhanced emergency telephone from the requirement of
establishing, every three years, a policy that provides the most
prompt, fair, equitable and effective response to requests or
dispatches for emergency towing services.
Referred to the Committee on the Judiciary.
By Senators Hunter and Caldwell:
Senate Bill No. 599--A Bill to amend the code of West
Virginia, 1931, as amended, by adding thereto a new section,
designated §18-7A-26t, relating to increasing supplemental benefits
to certain teacher retirement annuitants.
Referred to the Committee on Pensions; and then to the
Committee on Finance.
By Senators Sprouse and Oliverio:
Senate Bill No. 600--A Bill to amend the code of West
Virginia, 1931, as amended, by adding thereto a new section,
designated §37-6-31, relating to landlord and tenant; relieving
landlords of responsibility for the garbage collection bills of
their tenants; garbage collector's notice; and garbage collection
fees owed by tenant.
Referred to the Committee on the Judiciary.
By Senator Snyder:
Senate Bill No. 601--A Bill to amend the code of West
Virginia, 1931, as amended, by adding thereto a new section,
designated §7-1-14, relating to the authority of county
commissions; allowing county commissions of counties with a
seventeen percent increase in population as determined and reported
by bureau of the census of the United States department of commerce
during most recent census of population to enact ordinances;
setting forth the ordinance procedure; and enforcement provisions.
Referred to the Committee on Government Organization.
By Senator Snyder:
Senate Bill No. 602--A Bill to amend and reenact §18-5-22 of
the code of West Virginia, 1931, as amended, relating to county
boards of education; and requiring reimbursement from funds
appropriated to the state department of education for the full cost
of providing school nurses at each public school in the county.
Referred to the Committee on Education; and then to the
Committee on Finance.
By Senators Chafin, Fanning and Caldwell:
Senate Bill No. 603--A Bill to amend and reenact §18B-1A-6 of
the code of West Virginia, 1931, as amended, relating to adding
Bluefield state college to those colleges which may meet the need
for graduate education in its region.
Referred to the Committee on Education.
By Senator Unger:
Senate Bill No. 604--A Bill to amend and reenact §7-14D-7 of
the code of West Virginia, 1931, as amended, relating to employers'
contributions to the deputy sheriff retirement fund; and increasing
the contribution from nine and one-half to ten and one-half
percent.
Referred to the Committee on Pensions; and then to the
Committee on Finance.
By Senator Snyder:
Senate Bill No. 605--A Bill to amend and reenact §49-5D-5 of
the code of West Virginia, 1931, as amended; and to amend and
reenact §49-6A-2 of said code, all relating to child fatality
review teams; requiring that every all-terrain vehicle-related
death of a child be reviewed by the child fatality review team
under the office of the chief medical examiner; and requiring that
every substantial injury to or death of a child caused by or
involving the operation of an all-terrain vehicle be reported to
the state department of health and human resources.
Referred to the Committee on Health and Human Resources.
By Senators Smith, Dempsey, Weeks and Love:
Senate Joint Resolution No. 9--Proposing an amendment to the
Constitution of the State of West Virginia, amending article VI
thereof by adding thereto a new section, designated section 57,
relating to clarifying that the Constitution does not require the
state to pay for any abortion; numbering and designating such
proposed amendment; and providing a summarized statement of the
purpose of such proposed amendment.
Referred to the Committee on the Judiciary.
Senator Chafin offered the following resolution:
Senate Concurrent Resolution No. 46--Requesting the Division
of Highways name the portion of U. S. Route 52 from Taylorville
Road, Mingo County, to the foot of Horsepen Mountain the "R. A.
West Highway".
Whereas, R. A. West was born on March 12, 1947, in the town of
Varney, Mingo County; and
Whereas, R. A. West married Marsha Lowe of Williamson, Mingo
County, and took a position as a fireman with the Norfolk and
Western Railroad. Soon thereafter, he became the youngest person
to be promoted to the position of engineer; and
Whereas, At the age of 22, despite the fact that his firstborn
son was paralyzed due to injury at birth and was confined to a
wheelchair, R. A. West, driven by his religious convictions, heeded
the call to the evangelical ministry and resigned his job with the
railroad, thus forfeiting his job-related medical benefits while
costly medical bills associated with the condition of his son
continued to mount, thereby evidencing his unshakable religious
faith; and
Whereas, Once he began proselytizing, and due to his
unquestioning faith and religious fervor, R. A. West was never
content with evangelizing solely on Sundays, but instead
evangelized an average of 300 times each year, continuing this
amazingly torrid pace for the first 15 years of his ministry; and
Whereas, The R. A. West Ministry expanded into radio and television throughout the United States and 80 foreign countries,
spreading a constructive and positive message to millions of human
beings; and
Whereas, In spite of his national and world acclaim, R. A.
West never abandoned nor distanced himself from his humble origins,
nor from his beloved Varney, Mingo County, nor from his family,
friends and parishioners; and
Whereas, R. A. West, as a direct result of his good and
fruitful work, became one of the most respected unofficial
ambassadors of this state, a fact which was commemorated by former
Governor Jay Rockefeller; and
Whereas, Sadly, R. A. West was killed on July 6, 2002, in a
motorcycle accident. His funeral was the largest ever conducted in
southern West Virginia, drawing approximately 2,000 people from all
over the United States who gathered to pay their last respects; and
Whereas, The residents of Varney, Mingo County, as well as
people from all over the United States and in foreign countries
where Reverend West's message of peace, love and faith was
broadcast, shall never forget his towering spirit and his dedicated
fervor in sharing his religious faith; therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby requests the Division of Highways
name the portion of U. S. Route 52 from Taylorville Road, Mingo
County, to the foot of Horsepen Mountain the "R. A. West Highway";
and, be it
Further Resolved, That the Legislature hereby requests the Division of Highways place signs at each end of that portion of the
highway identifying it as the "R. A. West Highway"; and, be it
Further Resolved, That the Clerk of the Senate is hereby
directed to forward a copy of this resolution to the Secretary of
the Department of Transportation and to the surviving family
members of the late Reverend R. A. West.
Which, under the rules, lies over one day.
Senators Love, Bailey, Weeks, Oliverio, Caldwell, McKenzie,
Rowe, Harrison, Guills, Smith, Deem, Boley, Sprouse, Minear,
Edgell, Facemyer, Dempsey, Ross, Prezioso, Chafin, McCabe, Unger,
White, Bowman, Helmick, Plymale, Hunter, Minard, Tomblin (Mr.
President) and Jenkins offered the following resolution:
Senate Concurrent Resolution No. 47--Requesting the Joint
Committee on Government and Finance conduct an interim study of all
governmental agencies involved in resolving the problem of
widespread flooding of streams in West Virginia.
Whereas, Heavy rainfalls in West Virginia have caused
widespread flooding with consequent property damage and human
tragedy; and
Whereas, It is the duty of the Legislature, insofar as
possible, to relieve the pain and anguish of citizens who live
under the threat of flooding; and
Whereas, The streams of West Virginia are regularly reduced in
capacity by natural processes such as stream bank sloughing and the
accumulation of natural woody debris, as well as refuse dumping;
and
Whereas, Those streams whose channels have been reduced in
capacity are primary contributors to the frequency, extent and
severity of flooding; and
Whereas, Many citizens who live near or adjacent to these
streams live in fear of floodwaters inundating their homes; and
Whereas, During every heavy rain, elderly, frail and isolated
West Virginians fear that clogged streams will leave them
vulnerable to property damage which could be prevented; and
Whereas, Scientific hydrologic studies have established that
the combination of extraordinary rainfall on saturated soil,
combined with a reduction in stream channel capacity, determines
the extent and magnitude of flooding in suburban and rural
landscapes and that activities related to farming, timber
harvesting and mining have little or no such impact; and
Whereas, Individuals and businesses are no longer permitted to
clean and clear impediments from natural watercourses; and
Whereas, Several regulatory agencies with separate statutory
regulations are aware of the problems that exist with cleaning
clogged streams that cause flooding; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to conduct an interim study of all governmental agencies
involved in resolving the problem of widespread flooding of streams
in West Virginia; and, be it
Further Resolved, That every agency, including the United
States Army Corps of Engineers, whose primary mission is the prevention of flooding should be included in the study; and, be it
Further Resolved, That the study should be structured as a
forum to hear testimony from everyone involved in order to
establish a combination of regulatory agency authority and
responsibility to ease the ability of citizens to clear clogged
streams that cause flooding; and, be it
Further Resolved, That the Joint Committee on Government and
Finance report to the regular session of the Legislature, 2005, on
its findings, conclusions and recommendations, together with drafts
of any legislation necessary to effectuate its recommendations;
and, be it
Further Resolved, That the expenses necessary to conduct this
study, to prepare a report and to draft necessary legislation be
paid from legislative appropriations to the Joint Committee on
Government and Finance.
Which, under the rules, lies over one day.
Senators Prezioso, Unger, Bowman, Oliverio, McCabe, Dempsey,
Kessler, Ross, Guills, Love, Jenkins, Minard, Bailey, Plymale,
Facemyer, Minear, Weeks, Helmick, Snyder, Sprouse, Boley, Sharpe,
McKenzie, Rowe, Caldwell and Hunter offered the following
resolution:
Senate Concurrent Resolution No. 48--Requesting the Joint
Committee on Government and Finance study the training and
educational needs related to Alzheimer's disease and related
dementias in medical adult day care centers, nursing homes,
assisted living residences and residential care communities.
Whereas, Today more than 50 percent of all residents in long-
term care facilities suffer from Alzheimer's disease or related
dementias; and
Whereas, 400,000 West Virginia residents will begin reaching
the age of greatest risk for Alzheimer's disease and related
dementias in 2011; and
Whereas, Studies find annual rates of turnover among long-term
care staff range from 45 to 100 percent and job vacancy rates of 11
to 20 percent, with providers spending from $1,400 to $4,300 for
each worker replaced; and
Whereas, The quality of care for residents suffers as they
lose the continuity of care from familiar workers who know them and
have come to understand their needs, a loss that is particularly
acute for persons with Alzheimer's disease or related dementias;
and
Whereas, When current certified nursing assistant training
requirements were adopted by the Legislature in the late 1980s,
they were appropriate for the physically frail population in
long-term care facilities; yet now, the long-term care population
is much more cognitively impaired; and
Whereas, Other states have dementia-specific training
components that include a basic understanding of Alzheimer's
disease and related dementias, communication approaches and
techniques, and prevention or management of challenging behaviors
in persons with Alzheimer's disease and related dementias; and
Whereas, A study of these educational and training needs would address one component of the broader long-term care workforce issue
by providing the workforce with skills and knowledge that better
suit the challenges of working with patients suffering from
Alzheimer's disease and related dementias; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to study the training and educational needs related to
Alzheimer's disease and related dementias in medical adult day care
centers, nursing homes, assisted living residences and residential
care communities; and, be it
Further Resolved, That the Joint Committee on Government and
Finance report to the regular session of the Legislature, 2005, on
its findings, conclusions and recommendations, together with drafts
of any legislation necessary to effectuate its recommendations;
and, be it
Further Resolved, That the expenses necessary to conduct this
study, to prepare a report and to draft necessary legislation be
paid from legislative appropriations to the Joint Committee on
Government and Finance.
Which, under the rules, lies over one day.
Senators Prezioso, Oliverio, Tomblin (Mr. President), Bailey,
Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Minear, Plymale, Ross, Rowe, Sharpe,
Smith, Snyder, Sprouse, Unger, Weeks and White offered the
following resolution:
Senate Resolution No. 21--Memorializing the life of the
Honorable Anthony Joseph Yanero, prominent businessman, former
member of the Senate, dedicated public servant and distinguished
West Virginian.
Whereas, Anthony Joseph Yanero was born July 20, 1919, the son
of the late Felix A. and Stephanie Delligatti Yanero; and
Whereas, Anthony Joseph Yanero, a successful businessman, was
co-owner of Valley Distributing in Fairmont; and
Whereas, Anthony Joseph Yanero had a great love of the
legislative process in West Virginia and in earlier days was always
present during legislative sessions in Charleston. His popularity
with legislators was immense and his contributions to the
legislative process were momentous; and
Whereas, After many years of contributing to the legislative
process as a citizen, Anthony Joseph Yanero was himself appointed
to the West Virginia Senate on January 18, 1985, and served until
January, 1987; and
Whereas, During his tenure as a member of the West Virginia
Senate from the fourteenth Senatorial District, the Honorable
Anthony Joseph Yanero served on the Senate committees on Education,
Energy, Industry and Mining, Judiciary and Transportation. His
service in the Senate is evidence by many acts which bear his name;
and
Whereas, Following his service as a distinguished and
dedicated member of the West Virginia Senate, the Honorable Anthony
Joseph Yanero was appointed to serve as a member of the Citizens Legislative Compensation Commission, a position he held until his
passing; and
Whereas, The Honorable Anthony Joseph Yanero contributed much
to his beloved community as a member of various civic
organizations, including V. F. W. Post 629 and the American Legion
Post 17, and as a 50-year member of the Knights of Columbus, Third
Degree, Council 942; and
Whereas, Sadly, the Honorable Anthony Joseph Yanero passed
away on Friday, October 17, 2003, leaving behind his daughter, Lisa
J. Shaffer; two grandchildren, Christopher and Curtis Shaffer; one
brother, Dr. James Yanero; and a host of other loving family
members and friends; therefore, be it
Resolved by the Senate:
That the Senate hereby memorializes the life of the Honorable
Anthony Joseph Yanero, prominent businessman, former member of the
Senate, dedicated public servant and distinguished West Virginian;
and, be it
Further Resolved, That the Clerk is hereby directed to forward
a copy of this resolution to the daughter of the Honorable Anthony
Joseph Yanero, Lisa Shaffer, and his two beloved grandsons,
Christopher and Curtis Shaffer.
At the request of Senator Prezioso, unanimous consent being
granted, the resolution was taken up for immediate consideration,
reference to a committee dispensed with, and adopted.
On motion of Senator Chafin, the Senate recessed for one
minute.
Upon expiration of the recess, the Senate reconvened and
resumed business under the sixth order.
Senators Prezioso, Sharpe, Sprouse, Oliverio, Unger, Bowman,
McCabe, Dempsey, Kessler, Ross, Love, Minear, Snyder, Jenkins,
Minard, Plymale, Facemyer, Bailey, Guills, Weeks, Helmick,
McKenzie, Rowe, Caldwell and Hunter offered the following
resolution:
Senate Resolution No. 22--Recognizing the contributions of the
faculty, staff and students of the Robert C. Byrd Health Sciences
Center of West Virginia University on the occasion of the
University's centennial anniversary of the health professions
programs.
Whereas, Access to health care for West Virginians is
dependent upon the education and training of health professionals;
and
Whereas, In the following 100 years, West Virginia
University's Schools of Pharmacy, Dentistry and Nursing were
established for the benefit of its citizens; and
Whereas, These schools, designated the "Robert C. Byrd Health
Sciences Center" of West Virginia University, have educated
thousands of men and women to provide essential health services to
the state; and
Whereas, West Virginia University remains committed to health
professions education, medical research and health care for the
next century and beyond; therefore, be it
Resolved by the Senate:
That the Senate hereby recognizes the contributions of the
faculty, staff and students of the Robert C. Byrd Health Sciences
Center of West Virginia University on the occasion of the
University's centennial anniversary of the health professions
programs; and, be it
Further Resolved, That the members of the Senate are
encouraged to participate in appropriate celebrations at the Robert
C. Byrd Health Sciences Center campuses in Morgantown, Charleston
and Martinsburg on April 2-3, 2004.
At the request of Senator Chafin, unanimous consent being
granted, the resolution was taken up for immediate consideration,
reference to a committee dispensed with, and adopted.
On motion of Senator Chafin, the Senate recessed for one
minute.
Upon expiration of the recess, the Senate reconvened and
resumed business under the sixth order.
Petitions
Senators Love and White presented a petition from Karen Marlin
and seven Fayette County residents, opposing cuts to West Virginia
University Extension Service.
Referred to the Committee on Education.
Senators Bowman and McKenzie presented a petition from Melissa
Fritter and twenty-eight Madison Elementary School teachers,
supporting the merger of the Teachers Defined Benefit Retirement
Plan with the Teachers Defined Contribution Retirement Plan.
Referred to the Committee on Pensions.
Senator Prezioso presented a petition from Sharon Stone and
numerous West Virginia veterans, opposing Engrossed House Bill No.
4084 (West Virginia Pharmaceutical Availability and Affordability
Act).
Referred to the Committee on Health and Human Resources.
The Senate proceeded to the eighth order of business.
Eng. Senate Bill No. 147, Relating to transfer of lottery
surplus net profits.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Facemyer, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--32.
The nays were: None.
Absent: Bailey and Edgell--2.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 147) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Senate Bill No. 160, Extending time to appropriate money
from public employees insurance agency reserve fund to bureau of
medical services.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Facemyer, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--32.
The nays were: None.
Absent: Bailey and Edgell--2.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 160) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Senate Bill No. 321, Providing personal income tax
adjustment to gross income of certain retirees.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Facemyer, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--32.
The nays were: None.
Absent: Bailey and Edgell--2.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 321) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Senate Bill No. 444, Requiring county litter control
officers to enforce litter laws.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Facemyer, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--32.
The nays were: None.
Absent: Bailey and Edgell--2.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 444) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for Senate Bill No. 505, Creating motor vehicle
classification of "low-speed vehicle".
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Facemyer, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--32.
The nays were: None.
Absent: Bailey and Edgell--2.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 505) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
The Senate proceeded to the ninth order of business.
Senate Bill No. 317, Increasing parolee supervision fee.
On second reading, coming up in regular order, was read a
second time and ordered to engrossment and third reading.
Eng. House Bill No. 4012, Bringing the West Virginia
corporation net income tax act into conformity with federal income
tax.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. House Bill No. 4287, Eliminating the provision of law
limiting seniority rights for classified employees when funding the
annual salary increment results in employee layoffs.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on
Education, was reported by the Clerk and adopted:
On page two, section five, line five, by striking out the word
"appropriate".
The bill (Eng. H. B. No. 4287), as amended, was then ordered
to third reading.
Eng. House Bill No. 4348, Expiring funds to the treasurer's
office, banking services from the treasurer's office, unclaimed
property trust fund.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. House Bill No. 4349, Relating generally to consumers
sales and service tax.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on
Finance, was reported by the Clerk and adopted:
On page two, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That §11-15-9 of the code of West Virginia, 1931, as amended,
be amended and reenacted; that §11-15B-2, §11-15B-2a, §11-15B-15,
11-15B-30, 11-15B-32 and §11-15B-36 of said code be amended and
reenacted; and that said code be amended by adding thereto three
new sections, designated §11-15B-14a, §11-15B-19 and §11-15B-20, all to read as follows:
ARTICLE 15. CONSUMERS SALES AND SERVICE TAX.
§11-15-9. Exemptions.
(a) Exemptions for which exemption certificate may be issued.
-- A person having a right or claim to any exemption set forth in
this subsection may, in lieu of paying the tax imposed by this
article and filing a claim for refund, execute a certificate of
exemption, in the form required by the tax commissioner, and
deliver it to the vendor of the property or service in the manner
required by the tax commissioner. However, the tax commissioner
may, by rule, specify those exemptions authorized in this
subsection for which exemption certificates are not required. The
following sales of tangible personal property and services are
exempt as provided in this subsection:
(1) Sales of gas, steam and water delivered to consumers
through mains or pipes and sales of electricity;
(2) Sales of textbooks required to be used in any of the
schools of this state or in any institution in this state which
qualifies as a nonprofit or educational institution subject to the
West Virginia department of education and the arts, the board of
trustees of the university system of West Virginia or the board of
directors for colleges located in this state;
(3) Sales of property or services to this state, its
institutions or subdivisions, governmental units, institutions or
subdivisions of other states: Provided, That the law of the other
state provides the same exemption to governmental units or subdivisions of this state and to the United States, including
agencies of federal, state or local governments for distribution in
public welfare or relief work;
(4) Sales of vehicles which are titled by the division of
motor vehicles and which are subject to the tax imposed by section
four, article three, chapter seventeen-a of this code or like tax;
(5) Sales of property or services to churches which make no
charge whatsoever for the services they render: Provided, That the
exemption granted in this subdivision applies only to services,
equipment, supplies, food for meals and materials directly used or
consumed by these organizations and does not apply to purchases of
gasoline or special fuel;
(6) Sales of tangible personal property or services to a
corporation or organization which has a current registration
certificate issued under article twelve of this chapter, which is
exempt from federal income taxes under Section 501(c)(3) or (c)(4)
of the Internal Revenue Code of 1986, as amended, and which is:
(A) A church or a convention or association of churches as
defined in Section 170 of the Internal Revenue Code of 1986, as
amended;
(B) An elementary or secondary school which maintains a
regular faculty and curriculum and has a regularly enrolled body of
pupils or students in attendance at the place in this state where
its educational activities are regularly carried on;
(C) A corporation or organization which annually receives more
than one half of its support from any combination of gifts, grants, direct or indirect charitable contributions or membership fees;
(D) An organization which has no paid employees and its gross
income from fundraisers, less reasonable and necessary expenses
incurred to raise the gross income (or the tangible personal
property or services purchased with the net income), is donated to
an organization which is exempt from income taxes under Section
501(c)(3) or (c)(4) of the Internal Revenue Code of 1986, as
amended;
(E) A youth organization, such as the girl scouts of the
United States of America, the boy scouts of America or the YMCA
Indian guide/princess program and the local affiliates thereof,
which is organized and operated exclusively for charitable purposes
and has as its primary purpose the nonsectarian character
development and citizenship training of its members;
(F) For purposes of this subsection:
(i) The term "support" includes, but is not limited to:
(I) Gifts, grants, contributions or membership fees;
(II) Gross receipts from fundraisers which include receipts
from admissions, sales of merchandise, performance of services or
furnishing of facilities in any activity which is not an unrelated
trade or business within the meaning of Section 513 of the Internal
Revenue Code of 1986, as amended;
(III) Net income from unrelated business activities, whether
or not the activities are carried on regularly as a trade or
business;
(IV) Gross investment income as defined in Section 509(e) of the Internal Revenue Code of 1986, as amended;
(V) Tax revenues levied for the benefit of a corporation or
organization either paid to or expended on behalf of the
organization; and
(VI) The value of services or facilities (exclusive of
services or facilities generally furnished to the public without
charge) furnished by a governmental unit referred to in Section
170(c)(1) of the Internal Revenue Code of 1986, as amended, to an
organization without charge. This term does not include any gain
from the sale or other disposition of property which would be
considered as gain from the sale or exchange of a capital asset or
the value of an exemption from any federal, state or local tax or
any similar benefit;
(ii) The term "charitable contribution" means a contribution
or gift to or for the use of a corporation or organization,
described in Section 170(c)(2) of the Internal Revenue Code of
1986, as amended; and
(iii) The term "membership fee" does not include any amounts
paid for tangible personal property or specific services rendered
to members by the corporation or organization;
(G) The exemption allowed by this subdivision does not apply
to sales of gasoline or special fuel or to sales of tangible
personal property or services to be used or consumed in the
generation of unrelated business income as defined in Section 513
of the Internal Revenue Code of 1986, as amended. The provisions of
this subdivision apply to sales made after the thirtieth day of June, one thousand nine hundred eighty-nine: Provided, That the
exemption granted in this subdivision applies only to services,
equipment, supplies and materials used or consumed in the
activities for which the organizations qualify as tax-exempt
organizations under the Internal Revenue Code and does not apply to
purchases of gasoline or special fuel;
(7) An isolated transaction in which any taxable service or
any tangible personal property is sold, transferred, offered for
sale or delivered by the owner of the property or by his or her
representative for the owner's account, the sale, transfer, offer
for sale or delivery not being made in the ordinary course of
repeated and successive transactions of like character by the owner
or on his or her account by the representative: Provided, That
nothing contained in this subdivision may be construed to prevent
an owner who sells, transfers or offers for sale tangible personal
property in an isolated transaction through an auctioneer from
availing himself or herself of the exemption provided in this
subdivision, regardless of where the isolated sale takes place. The
tax commissioner may propose a legislative rule for promulgation
pursuant to article three, chapter twenty-nine-a of this code which
he or she considers necessary for the efficient administration of
this exemption;
(8) Sales of tangible personal property or of any taxable
services rendered for use or consumption in connection with the
commercial production of an agricultural product the ultimate sale
of which is subject to the tax imposed by this article or which would have been subject to tax under this article: Provided, That
sales of tangible personal property and services to be used or
consumed in the construction of or permanent improvement to real
property and sales of gasoline and special fuel are not exempt:
Provided, however, That nails and fencing may not be considered as
improvements to real property;
(9) Sales of tangible personal property to a person for the
purpose of resale in the form of tangible personal property:
Provided, That sales of gasoline and special fuel by distributors
and importers is taxable except when the sale is to another
distributor for resale: Provided, however, That sales of building
materials or building supplies or other property to any person
engaging in the activity of contracting, as defined in this
article, which is to be installed in, affixed to or incorporated by
that person or his or her agent into any real property, building or
structure is not exempt under this subdivision;
(10) Sales of newspapers when delivered to consumers by route
carriers;
(11) Sales of drugs, durable medical goods, mobility-enhancing
equipment and prosthetic devices dispensed upon prescription and
sales of insulin to consumers for medical purposes. The amendment
to this subdivision shall apply to sales made after the thirty-
first day of December, two thousand three;
(12) Sales of radio and television broadcasting time,
preprinted advertising circulars and newspaper and outdoor
advertising space for the advertisement of goods or services;
(13) Sales and services performed by day care centers;
(14) Casual and occasional sales of property or services not
conducted in a repeated manner or in the ordinary course of
repetitive and successive transactions of like character by a
corporation or organization which is exempt from tax under
subdivision (6) of this subsection on its purchases of tangible
personal property or services. (A) For purposes of this
subdivision, the term "casual and occasional sales not conducted in
a repeated manner or in the ordinary course of repetitive and
successive transactions of like character" means sales of tangible
personal property or services at fundraisers sponsored by a
corporation or organization which is exempt, under subdivision (6)
of this subsection, from payment of the tax imposed by this article
on its purchases when the fundraisers are of limited duration and
are held no more than six times during any twelve-month period and
"limited duration" means no more than eighty-four consecutive
hours: Provided, That sales for volunteer fire departments and
volunteer school support groups, with duration of events being no
more than eighty-four consecutive hours at a time, which are held
no more than eighteen times in a twelve-month period for the
purposes of this subdivision are considered "casual and occasional
sales not conducted in a repeated manner or in the ordinary course
of repetitive and successive transactions of a like character; and
(B) The provisions of this subdivision apply to sales made
after the thirtieth day of June, one thousand nine hundred
eighty-nine;
(15) Sales of property or services to a school which has
approval from the board of trustees of the university system of
West Virginia or the board of directors of the state college system
to award degrees, which has its principal campus in this state and
which is exempt from federal and state income taxes under Section
501(c)(3) of the Internal Revenue Code of 1986, as amended:
Provided, That sales of gasoline and special fuel are taxable;
(16) Sales of mobile homes to be used by purchasers as their
principal year-round residence and dwelling: Provided, That these
mobile homes are subject to tax at the three-percent rate;
(17) (16) Sales of lottery tickets and materials by licensed
lottery sales agents and lottery retailers authorized by the state
lottery commission, under the provisions of article twenty-two,
chapter twenty-nine of this code;
(18) (17) Leases of motor vehicles titled pursuant to the
provisions of article three, chapter seventeen-a of this code to
lessees for a period of thirty or more consecutive days. This
exemption applies to leases executed on or after the first day of
July, one thousand nine hundred eighty-seven, and to payments under
long-term leases executed before that date for months of the lease
beginning on or after that date;
(19) (18) Notwithstanding the provisions of section eighteen
or eighteen-b of this article or any other provision of this
article to the contrary, sales of propane to consumers for poultry
house heating purposes, with any seller to the consumer who may
have prior paid the tax in his or her price, to not pass on the same to the consumer, but to make application and receive refund of
the tax from the tax commissioner pursuant to rules which are
promulgated after being proposed for legislative approval in
accordance with chapter twenty-nine-a of this code by the tax
commissioner;
(20) (19) Any sales of tangible personal property or services
purchased after the thirtieth day of September, one thousand nine
hundred eighty-seven, and lawfully paid for with food stamps
pursuant to the federal food stamp program codified in 7 U. S. C.
§2011, et seq., as amended, or with drafts issued through the West
Virginia special supplement food program for women, infants and
children codified in 42 U. S. C. §1786;
(21) (20) Sales of tickets for activities sponsored by
elementary and secondary schools located within this state;
(22) (21) Sales of electronic data processing services and
related software: Provided, That, for the purposes of this
subdivision, "electronic data processing services" means:
(A) The processing of another's data, including all processes
incident to processing of data such as keypunching, keystroke
verification, rearranging or sorting of previously documented data
for the purpose of data entry or automatic processing and changing
the medium on which data is sorted, whether these processes are
done by the same person or several persons; and
(B) Providing access to computer equipment for the purpose of
processing data or examining or acquiring data stored in or
accessible to the computer equipment;
(23) (22) Tuition charged for attending educational summer
camps;
(24) (23) Dispensing of services performed by one corporation,
partnership or limited liability company for another corporation,
partnership or limited liability company when the entities are
members of the same controlled group or are related taxpayers as
defined in Section 267 of the Internal Revenue Code. "Control"
means ownership, directly or indirectly, of stock, equity interests
or membership interests possessing fifty percent or more of the
total combined voting power of all classes of the stock of a
corporation, equity interests of a partnership or membership
interests of a limited liability company entitled to vote or
ownership, directly or indirectly, of stock, equity interests or
membership interests possessing fifty percent or more of the value
of the corporation, partnership or limited liability company;
(25) (24) Food for the following are exempt:
(A) Food purchased or sold by a public or private school,
school-sponsored student organizations or school-sponsored
parent-teacher associations to students enrolled in the school or
to employees of the school during normal school hours; but not
those sales of food made to the general public;
(B) Food purchased or sold by a public or private college or
university or by a student organization officially recognized by
the college or university to students enrolled at the college or
university when the sales are made on a contract basis so that a
fixed price is paid for consumption of food products for a specific period of time without respect to the amount of food product
actually consumed by the particular individual contracting for the
sale and no money is paid at the time the food product is served or
consumed;
(C) Food purchased or sold by a charitable or private
nonprofit organization, a nonprofit organization or a governmental
agency under a program to provide food to low-income persons at or
below cost;
(D) Food sold by a charitable or private nonprofit
organization, a nonprofit organization or a governmental agency
under a program operating in West Virginia for a minimum of five
years to provide food at or below cost to individuals who perform
a minimum of two hours of community service for each unit of food
purchased from the organization;
(E) Food sold in an occasional sale by a charitable or
nonprofit organization, including volunteer fire departments and
rescue squads, if the purpose of the sale is to obtain revenue for
the functions and activities of the organization and the revenue
obtained is actually expended for that purpose;
(F) Food sold by any religious organization at a social or
other gathering conducted by it or under its auspices, if the
purpose in selling the food is to obtain revenue for the functions
and activities of the organization and the revenue obtained from
selling the food is actually used in carrying out those functions
and activities: Provided, That purchases made by the organizations
are not exempt as a purchase for resale; or
(G) Food sold after the thirty-first day of July, two thousand
two, by volunteer fire departments and rescue squads that are
exempt from federal income taxes under Section 501(c)(3) or (c)(4)
of the Internal Revenue Code of 1986, as amended, when the purpose
of the sale is to obtain revenue for the functions and activities
of the organization and the revenue obtained is exempt from federal
income tax and actually expended for that purpose;
(26) (25) Sales of food by little leagues, midget football
leagues, youth football or soccer leagues, band boosters or other
school or athletic booster organizations supporting activities for
grades kindergarten through twelve and similar types of
organizations, including scouting groups and church youth groups,
if the purpose in selling the food is to obtain revenue for the
functions and activities of the organization and the revenues
obtained from selling the food is actually used in supporting or
carrying on functions and activities of the groups: Provided, That
the purchases made by the organizations are not exempt as a
purchase for resale;
(27) (26) Charges for room and meals by fraternities and
sororities to their members: Provided, That the purchases made by
a fraternity or sorority are not exempt as a purchase for resale;
(28) (27) Sales of or charges for the transportation of
passengers in interstate commerce;
(29) (28) Sales of tangible personal property or services to
any person which this state is prohibited from taxing under the
laws of the United States or under the constitution of this state;
(30) (29) Sales of tangible personal property or services to
any person who claims exemption from the tax imposed by this
article or article fifteen-a of this chapter pursuant to the
provision of any other chapter of this code;
(31) (30) Charges for the services of opening and closing a
burial lot;
(32) (31) Sales of livestock, poultry or other farm products
in their original state by the producer of the livestock, poultry
or other farm products or a member of the producer's immediate
family who is not otherwise engaged in making retail sales of
tangible personal property; and sales of livestock sold at public
sales sponsored by breeders or registry associations or livestock
auction markets: Provided, That the exemptions allowed by this
subdivision apply to sales made on or after the first day of July,
one thousand nine hundred ninety, and may be claimed without
presenting or obtaining exemption certificates: Provided, however,
That provided the farmer shall maintain maintains adequate records;
(33) (32) Sales of motion picture films to motion picture
exhibitors for exhibition if the sale of tickets or the charge for
admission to the exhibition of the film is subject to the tax
imposed by this article and sales of coin-operated video arcade
machines or video arcade games to a person engaged in the business
of providing the machines to the public for a charge upon which the
tax imposed by this article is remitted to the tax commissioner:
Provided, That the exemption provided in this subdivision applies
to sales made on or after the first day of July, one thousand nine hundred ninety, and may be claimed by presenting to the seller a
properly executed exemption certificate;
(34) (33) Sales of aircraft repair, remodeling and maintenance
services when the services are to an aircraft operated by a
certified or licensed carrier of persons or property, or by a
governmental entity, or to an engine or other component part of an
aircraft operated by a certificated or licensed carrier of persons
or property, or by a governmental entity and sales of tangible
personal property that is permanently affixed or permanently
attached as a component part of an aircraft owned or operated by a
certificated or licensed carrier of persons or property, or by a
governmental entity, as part of the repair, remodeling or
maintenance service and sales of machinery, tools or equipment,
directly used or consumed exclusively in the repair, remodeling or
maintenance of aircraft, aircraft engines or aircraft component
parts, for a certificated or licensed carrier of persons or
property, or for a governmental entity;
(35) (34) Charges for memberships or services provided by
health and fitness organizations relating to personalized fitness
programs;
(36) (35) Sales of services by individuals who baby-sit for a
profit: Provided, That the gross receipts of the individual from
the performance of baby-sitting services do not exceed five
thousand dollars in a taxable year;
(37) (36) Sales of services after the thirtieth day of June,
one thousand nine hundred ninety-seven, by public libraries or by libraries at academic institutions or by libraries at institutions
of higher learning;
(38) (37) Commissions received after the thirtieth day of
June, one thousand nine hundred ninety-seven, by a manufacturer's
representative;
(39) (38) Sales of primary opinion research services after the
thirtieth day of June, one thousand nine hundred ninety-seven,
when:
(A) The services are provided to an out-of-state client;
(B) The results of the service activities, including, but not
limited to, reports, lists of focus group recruits and compilation
of data are transferred to the client across state lines by mail,
wire or other means of interstate commerce, for use by the client
outside the state of West Virginia; and
(C) The transfer of the results of the service activities is
an indispensable part of the overall service.
For the purpose of this subdivision, the term "primary opinion
research" means original research in the form of telephone surveys,
mall intercept surveys, focus group research, direct mail surveys,
personal interviews and other data collection methods commonly used
for quantitative and qualitative opinion research studies;
(40) (39) Sales of property or services after the thirtieth
day of June, one thousand nine hundred ninety-seven, to persons
within the state when those sales are for the purposes of the
production of value-added products: Provided, That the exemption
granted in this subdivision applies only to services, equipment, supplies and materials directly used or consumed by those persons
engaged solely in the production of value-added products: Provided,
however, That this exemption may not be claimed by any one
purchaser for more than five consecutive years, except as otherwise
permitted in this section.
For the purpose of this subdivision, the term "value-added
product" means the following products derived from processing a raw
agricultural product, whether for human consumption or for other
use. For purposes of this subdivision, the following enterprises
qualify as processing raw agricultural products into value-added
products: Those engaged in the conversion of:
(A) Lumber into furniture, toys, collectibles and home
furnishings;
(B) Fruits into wine;
(C) Honey into wine;
(D) Wool into fabric;
(E) Raw hides into semifinished or finished leather products;
(F) Milk into cheese;
(G) Fruits or vegetables into a dried, canned or frozen
product;
(H) Feeder cattle into commonly accepted slaughter weights;
(I) Aquatic animals into a dried, canned, cooked or frozen
product; and
(J) Poultry into a dried, canned, cooked or frozen product;
(41) (40) After the thirtieth day of June, one thousand nine
hundred ninety-seven, sales Sales of music instructional services by a music teacher and artistic services or artistic performances
of an entertainer or performing artist pursuant to a contract with
the owner or operator of a retail establishment, restaurant, inn,
bar, tavern, sports or other entertainment facility or any other
business location in this state in which the public or a limited
portion of the public may assemble to hear or see musical works or
other artistic works be performed for the enjoyment of the members
of the public there assembled when the amount paid by the owner or
operator for the artistic service or artistic performance does not
exceed three thousand dollars: Provided, That nothing contained
herein may be construed to deprive private social gatherings,
weddings or other private parties from asserting the exemption set
forth in this subdivision. For the purposes of this exemption,
artistic performance or artistic service means and is limited to
the conscious use of creative power, imagination and skill in the
creation of aesthetic experience for an audience present and in
attendance and includes, and is limited to, stage plays, musical
performances, poetry recitations and other readings, dance
presentation, circuses and similar presentations and does not
include the showing of any film or moving picture, gallery
presentations of sculptural or pictorial art, nude or strip show
presentations, video games, video arcades, carnival rides, radio or
television shows or any video or audio taped presentations or the
sale or leasing of video or audio tapes, air shows, or any other
public meeting, display or show other than those specified herein:
Provided, however, That nothing contained herein may be construed to exempt the sales of tickets from the tax imposed in this
article. The state tax commissioner shall propose a legislative
rule pursuant to article three, chapter twenty-nine-a of this code
establishing definitions and eligibility criteria for asserting
this exemption which is not inconsistent with the provisions set
forth herein: Provided further, That nude dancers or strippers may
not be considered as entertainers for the purposes of this
exemption;
(42) (41) After the thirtieth day of June, one thousand nine
hundred ninety-seven, charges Charges to a member by a membership
association or organization which is exempt from paying federal
income taxes under Section 501(c)(3) or (c)(6) of the Internal
Revenue Code of 1986, as amended, for membership in the association
or organization, including charges to members for newsletters
prepared by the association or organization for distribution
primarily to its members, charges to members for continuing
education seminars, workshops, conventions, lectures or courses put
on or sponsored by the association or organization, including
charges for related course materials prepared by the association or
organization or by the speaker or speakers for use during the
continuing education seminar, workshop, convention, lecture or
course, but not including any separate charge or separately stated
charge for meals, lodging, entertainment or transportation taxable
under this article: Provided, That the association or organization
pays the tax imposed by this article on its purchases of meals,
lodging, entertainment or transportation taxable under this article for which a separate or separately stated charge is not made. A
membership association or organization which is exempt from paying
federal income taxes under Section 501(c)(3) or (c)(6) of the
Internal Revenue Code of 1986, as amended, may elect to pay the tax
imposed under this article on the purchases for which a separate
charge or separately stated charge could apply and not charge its
members the tax imposed by this article or the association or
organization may avail itself of the exemption set forth in
subdivision (9) of this subsection relating to purchases of
tangible personal property for resale and then collect the tax
imposed by this article on those items from its member;
(43) (42) Sales of governmental services or governmental
materials after the thirtieth day of June, one thousand nine
hundred ninety-seven, by county assessors, county sheriffs, county
clerks or circuit clerks in the normal course of local government
operations;
(44) (43) Direct or subscription sales by the division of
natural resources of the magazine currently entitled "Wonderful
West Virginia" and by the division of culture and history of the
magazine currently entitled "Goldenseal" and the journal currently
entitled "West Virginia History";
(45) (44) Sales of soap to be used at car wash facilities;
(46) (45) Commissions received by a travel agency from an
out-of-state vendor;
(47) (46) The service of providing technical evaluations for
compliance with federal and state environmental standards provided by environmental and industrial consultants who have formal
certification through the West Virginia department of environmental
protection or the West Virginia bureau for public health or both.
For purposes of this exemption, the service of providing technical
evaluations for compliance with federal and state environmental
standards includes those costs of tangible personal property
directly used in providing such services that are separately billed
to the purchaser of such services and on which the tax imposed by
this article has previously been paid by the service provider;
(48) (47) Sales of tangible personal property and services by
volunteer fire departments and rescue squads that are exempt from
federal income taxes under Section 501(c)(3) or (c)(4) of the
Internal Revenue Code of 1986, as amended, during fundraising
activities held after the thirty-first day of July, two thousand
two, if the sole purpose of the sale is to obtain revenue for the
functions and activities of the organization and the revenue
obtained is exempt from federal income tax and actually expended
for that purpose;
(49) (48) Lodging franchise fees, including royalties,
marketing fees, reservation system fees or other fees assessed
after the first day of December, one thousand nine hundred
ninety-seven, that have been or may be imposed by a lodging
franchiser as a condition of the franchise agreement; and
(50) (49) Sales of the regulation size United States flag and
the regulation size West Virginia flag for display.
(b) Refundable exemptions. -- Any person having a right or claim to any exemption set forth in this subsection shall first pay
to the vendor the tax imposed by this article and then apply to the
tax commissioner for a refund or credit, or as provided in section
nine-d of this article, give to the vendor his or her West Virginia
direct pay permit number. The following sales of tangible personal
property and services are exempt from tax as provided in this
subsection:
(1) Sales of property or services to bona fide charitable
organizations who make no charge whatsoever for the services they
render: Provided, That the exemption granted in this subdivision
applies only to services, equipment, supplies, food, meals and
materials directly used or consumed by these organizations and does
not apply to purchases of gasoline or special fuel;
(2) Sales of services, machinery, supplies and materials
directly used or consumed in the activities of manufacturing,
transportation, transmission, communication, production of natural
resources, gas storage, generation or production or selling
electric power, provision of a public utility service or the
operation of a utility service or the operation of a utility
business, in the businesses or organizations named in this
subdivision and does not apply to purchases of gasoline or special
fuel;
(3) Sales of property or services to nationally chartered
fraternal or social organizations for the sole purpose of free
distribution in public welfare or relief work: Provided, That sales
of gasoline and special fuel are taxable;
(4) Sales and services, fire fighting or station house
equipment, including construction and automotive, made to any
volunteer fire department organized and incorporated under the laws
of the state of West Virginia: Provided, That sales of gasoline and
special fuel are taxable; and
(5) Sales of building materials or building supplies or other
property to an organization qualified under Section 501(c)(3) or
(c)(4) of the Internal Revenue Code of 1986, as amended, which are
to be installed in, affixed to or incorporated by the organization
or its agent into real property or into a building or structure
which is or will be used as permanent low-income housing,
transitional housing, an emergency homeless shelter, a domestic
violence shelter or an emergency children and youth shelter if the
shelter is owned, managed, developed or operated by an organization
qualified under Section 501(c)(3) or (c)(4) of the Internal Revenue
Code of 1986, as amended.
ARTICLE 15B. STREAMLINED SALES AND USE TAX AGREEMENT.
§11-15B-2. Definitions.
(a) General. -- When used in this article and articles fifteen
and fifteen-a of this chapter, words defined in subsection (b) of
this section shall have the meanings ascribed to them in this
section, except in those instances where a different meaning is
distinctly expressed or the context in which the term is used
clearly indicates that a different meaning is intended by the
Legislature.
(b) Terms defined. -
(1) "Agent" means a person appointed by a seller to represent
the seller before the member states.
(2) "Agreement" means the streamlined sales and use tax
agreement, as defined in section two-a of this article.
(3) "Alcoholic beverages" means beverages that are suitable
for human consumption and contain one half of one percent or more
of alcohol by volume.
(4) "Certified automated system" or "CAS" means software
certified under the agreement to calculate the tax imposed by each
jurisdiction on a transaction, determine the amount of tax to remit
to the appropriate state and maintain a record of the transaction.
(5) "Certified service provider" or "CSP" means an agent
certified under the agreement to perform all of the seller's sales
tax functions.
(6) "Computer" means an electronic device that accepts
information in digital or similar form and manipulates the
information for a result based on a sequence of instructions.
(7) "Computer software" means a set of coded instructions
designed to cause a "computer" or automatic data processing
equipment to perform a task.
(8) "Delivered electronically" means delivered to the
purchaser by means other than tangible storage media.
(9) "Delivery charges" means charges by the seller of personal
property or services for preparation and delivery to a location
designated by the purchaser of personal property or services
including, but not limited to, transportation, shipping, postage, handling, crating and packing.
(10) "Dietary supplement" means any product, other than
"tobacco", intended to supplement the diet that:
(A) Contains one or more of the following dietary ingredients:
(i) A vitamin;
(ii) A mineral;
(iii) A herb or other botanical;
(iv) An amino acid;
(v) A dietary substance for use by humans to supplement the
diet by increasing the total dietary intake; or
(vi) A concentrate, metabolite, constituent, extract or
combination of any ingredient described in subparagraph
subparagraphs (i) through (v), inclusive, of this subdivision;
(B) Is intended for ingestion in tablet, capsule, powder,
softgel, gelcap or liquid form, or if not intended for ingestion in
such a form, is not represented as conventional food and is not
represented for use as a sole item of a meal or of the diet; and
(C) Is required to be labeled as a dietary supplement,
identifiable by the "Supplemental Facts" box found on the label as
required pursuant to 21 CFR §101.36, or in any successor section of
the code of federal regulations.
(11) "Direct mail" means printed material delivered or
distributed by United States mail or other delivery service to a
mass audience or to addressees on a mailing list provided by the
purchaser or at the direction of the purchaser when the cost of the
items are not billed directly to the recipients. "Direct mail" includes tangible personal property supplied directly or indirectly
by the purchaser to the direct mail seller for inclusion in the
package containing the printed material. "Direct mail" does not
include multiple items of printed material delivered to a single
address.
(12) "Drug" means a compound, substance or preparation, and
any component of a compound, substance or preparation, other than
food and food ingredients, dietary supplements or alcoholic
beverages:
(A) Recognized in the official United States pharmacopoeia,
official homeopathic pharmacopoeia of the United States, or
official national formulary, and supplement to any of them;
(B) Intended for use in the diagnosis, cure, mitigation,
treatment or prevention of disease in humans; or
(C) Intended to affect the structure or any function of the
human body.
(13) "Durable medical equipment" means equipment including
repair and replacement parts for the equipment, but does not
include "mobility-enhancing equipment", which:
(A) Can withstand repeated use;
(B) Is primarily and customarily used to serve a medical
purpose;
(C) Generally is not useful to a person in the absence of
illness or injury; and
(D) Is not worn in or on the body.
(14) "Electronic" means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic
or similar capabilities.
(15) "Entity-based exemption" means an exemption based on who
purchases the product or service or who sells the product or
service.
(16) "Food and food ingredients" means substances, whether in
liquid, concentrated, solid, frozen, dried or dehydrated form, that
are sold for ingestion or chewing by humans and are consumed for
their taste or nutritional value. "Food and food ingredients" does
not include alcoholic beverages or tobacco.
(17) "Includes" and "including" when used in a definition
contained in this article is not considered to exclude other things
otherwise within the meaning of the term being defined.
(18) "Lease" includes rental, hire and license. "Lease" means
any transfer of possession or control of tangible personal property
for a fixed or indeterminate term for consideration. A lease or
rental may include future options to purchase or extend.
(A) "Lease" does not include:
(i) A transfer of possession or control of property under a
security agreement or deferred payment plan that requires the
transfer of title upon completion of the required payments;
(ii) A transfer or possession or control of property under an
agreement that requires the transfer of title upon completion of
required payments and payment of an option price does not exceed
the greater of one hundred dollars or one percent of the total
required payments; or
(iii) Providing tangible personal property along with an
operator for a fixed or indeterminate period of time. A condition
of this exclusion is that the operator is necessary for the
equipment to perform as designed. For the purpose of this
subparagraph, an operator must do more than maintain, inspect or
set-up the tangible personal property.
(B) This definition shall be used for sales and use tax
purposes regardless if a transaction is characterized as a lease or
rental under generally accepted accounting principles, the Internal
Revenue Code, the uniform commercial code or other provisions of
federal, state or local law.
(19) "Load and leave" means delivery to the purchaser by use
of a tangible storage media where the tangible storage media is not
physically transferred to the purchaser.
(20) "Mobility enhancing equipment" means equipment, including
repair and replacement parts to the equipment, but does not include
"durable medical equipment", which:
(A) Is primarily and customarily used to provide or increase
the ability to move from one place to another and which is
appropriate for use either in a home or a motor vehicle;
(B)Is not generally used by persons with normal mobility; and
(C) Does not include any motor vehicle or equipment on a motor
vehicle normally provided by a motor vehicle manufacturer.
(21) "Model I seller" means a seller that has selected a
certified service provider as its agent to perform all the seller's
sales and use tax functions, other than the seller's obligation to remit tax on its own purchases.
(22) "Model II seller" means a seller that has selected a
certified automated system to perform part of its sales and use tax
functions, but retains responsibility for remitting the tax.
(23) "Model III seller" means a seller that has sales in at
least five member states, has total annual sales revenue of at
least five hundred million dollars, has a proprietary system that
calculates the amount of tax due each jurisdiction and has entered
into a performance agreement with the member states that
establishes a tax performance standard for the seller. As used in
this definition, a seller includes an affiliated group of sellers
using the same proprietary system.
(24) "Person" means an individual, trust, estate, fiduciary,
partnership, limited liability company, limited liability
partnership, corporation or any other legal entity.
(25) "Personal service" includes those:
(A) Compensated by the payment of wages in the ordinary course
of employment; and
(B) Rendered to the person of an individual without, at the
same time, selling tangible personal property, such as nursing,
barbering, manicuring and similar services.
(26) "Prescription" means an order, formula or recipe issued
in any form of oral, written, electronic or other means of
transmission by a duly licensed practitioner authorized by the laws
of this state to issue prescriptions.
(27) "Prewritten computer software" means "computer software", including prewritten upgrades, which is not designed and developed
by the author or other creator to the specifications of a specific
purchaser.
(A) The combining of two or more prewritten computer software
programs or prewritten portions thereof does not cause the
combination to be other than prewritten computer software.
(B) "Prewritten computer software" includes software designed
and developed by the author or other creator to the specifications
of a specific purchaser when it is sold to a person other than the
purchaser. Where a person modifies or enhances computer software of
which the person is not the author or creator, the person is
considered to be the author or creator only of the person's
modifications or enhancements.
(C) "Prewritten computer software" or a prewritten portion
thereof that is modified or enhanced to any degree, where the
modification or enhancement is designed and developed to the
specifications of a specific purchaser, remains prewritten computer
software: Provided, That where there is a reasonable, separately
stated charge or an invoice or other statement of the price given
to the purchaser for the modification or enhancement, the
modification or enhancement does not constitute prewritten computer
software.
(28) "Product-based exemption" means an exemption based on the
description of the product or service and not based on who
purchases the product or service or how the purchaser intends to
use the product or service.
(29) "Prosthetic device" means a replacement, corrective or
supportive device, including repair and replacement parts for the
device worn on or in the body to:
(A) Artificially replace a missing portion of the body;
(B) Prevent or correct physical deformity or malfunction of
the body; or
(C) Support a weak or deformed portion of the body.
(30) "Protective equipment" means items for human wear and
designed as protection of the wearer against injury or disease or
as protections against damage or injury of other persons or
property but not suitable for general use.
(31) "Purchase price" means the measure subject to the tax
imposed by article fifteen or article fifteen-a of this chapter and
has the same meaning as sales price.
(32) "Purchaser" means a person to whom a sale of personal
property is made or to whom a service is furnished.
(33) "Registered under this agreement" means registration by
a seller with the member states under the central registration
system provided in article four of the agreement.
(34) "Retail sale" or "sale at retail" means:
(A) Any sale or lease for any purpose other than for resale as
tangible personal property, sublease or subrent; and
(B) Any sale of a service other than a service purchased for
resale.
(35) (A) "Sales price" means the measure subject to the tax
levied by this article and includes the total amount of consideration, including cash, credit, property and services, for
which personal property or services are sold, leased or rented,
valued in money, whether received in money or otherwise, without
any deduction for the following:
(i) The seller's cost of the property sold;
(ii) The cost of materials used, labor or service cost,
interest, losses, all costs of transportation to the seller, all
taxes imposed on the seller and any other expense of the seller;
(iii) Charges by the seller for any services necessary to
complete the sale, other than delivery and installation charges;
(iv) Delivery charges;
(v) Installation charges;
(vi) The value of exempt personal property given to the
purchaser where taxable and exempt personal property have been
bundled together and sold by the seller as a single product or
piece of merchandise; and
(vii) Credit for the fair market value of any trade-in.
(B) "Sales price" does not include:
(i) Discounts, including cash, term or coupons that are not
reimbursed by a third party that are allowed by a seller and taken
by a purchaser on a sale;
(ii) Interest, financing and carrying charges from credit
extended on the sale of personal property, goods or services if the
amount is separately stated on the invoice, bill of sale or similar
document given to the purchaser; and
(iii) Any taxes legally imposed directly on the consumer that are separately stated on the invoice, bill of sale or similar
document given to the purchaser.
(36) "Sales tax" means the tax levied under article fifteen of
this chapter.
(37) "Seller" means any person making sales, leases or rentals
of personal property or services.
(38) "Service" or "selected service" includes all
nonprofessional activities engaged in for other persons for a
consideration, which involve the rendering of a service as
distinguished from the sale of tangible personal property, but does
not include contracting, personal services, services rendered by an
employee to his or her employer, any service rendered for resale or
any service furnished by a business that is subject to the control
of the public service commission when the service or the manner in
which it is delivered is subject to regulation by the public
service commission of this state. The term "service" or "selected
service" does not include payments received by a vendor of tangible
personal property as an incentive to sell a greater volume of such
tangible personal property under a manufacturer's, distributor's or
other third-party's marketing support program, sales incentive
program, cooperative advertising agreement or similar type of
program or agreement, and these payments are not considered to be
payments for a "service" or "selected service" rendered, even
though the vendor may engage in attendant or ancillary activities
associated with the sales of tangible personal property as required
under the programs or agreements.
(39) "State" means any state of the United States and the
District of Columbia.
(40) "Tangible personal property" means personal property that
can be seen, weighed, measured, felt or touched, or that is in any
manner perceptible to the senses. "Tangible personal property"
includes, but is not limited to, electricity, water, gas and
prewritten computer software.
(41) "Tax" includes all taxes levied under articles fifteen
and fifteen-a of this chapter, and additions to tax, interest and
penalties levied under article ten of this chapter.
(42) "Tax commissioner" means the state tax commissioner or
his or her delegate. The term "delegate" in the phrase "or his or
her delegate", when used in reference to the tax commissioner,
means any officer or employee of the state tax division duly
authorized by the tax commissioner directly, or indirectly by one
or more redelegations of authority, to perform the functions
mentioned or described in this article or rules promulgated for
this article.
(43) "Taxpayer" means any person liable for the taxes levied
by articles fifteen and fifteen-a of this chapter or any additions
to tax, penalties imposed by article ten of this chapter.
(44) "Tobacco" means cigarettes, cigars, chewing or pipe
tobacco, or any other item that contains tobacco.
(45) "Use tax" means the tax levied under article fifteen-a of
this chapter.
(46) "Use-based exemption" means an exemption based on the purchaser's use of the product or service.
(47) "Vendor" means any person furnishing services taxed by
article fifteen or fifteen-a of this chapter, or making sales of
tangible personal property or custom software. "Vendor" and
"seller" are used interchangeably in this article and in article
fifteen and fifteen-a of this chapter.
(c) Additional definitions. -- Other terms used in this
article are defined in articles fifteen and fifteen-a of this
chapter, which definitions are incorporated by reference into this
article. Additionally, other sections of this article may define
terms primarily used in the section in which the term is defined.
§11-15B-2a. Streamlined sales and use tax agreement defined.
As used in this article and articles fifteen and fifteen-a of
this chapter, the term "streamlined sales and use tax agreement" or
"agreement" means the agreement adopted the twelfth day of
November, two thousand two, by states that enacted authority to
engage in multistate discussions similar to that provided in
section four of this article, except when the context in which the
term is used clearly indicates that a different meaning is intended
by the Legislature. "Agreement" includes amendments to the
agreement adopted by the implementing states in calendar year two
thousand three but does not include any substantive changes in the
agreement adopted after the Legislature enacts this section in the
year thirty-first day of December, two thousand three.
§11-15B-14a. Application of general sourcing rules and exclusions
from the rules.
(a) Sellers shall source the sale of a product in accordance
with section fifteen of this article. The provisions of said
section apply regardless of the characterization of the product as
tangible personal property, custom software or a service. The
provisions of said section only apply to determine a seller's
obligation to pay or collect and remit a sales or use tax with
respect to the seller's sale of a product. These provisions do not
affect the obligation of a purchaser or lessee to remit tax on the
use of the product to the taxing jurisdiction of that use.
(b) Section fifteen of this article does not apply to sales or
use tax levied on telecommunication services as defined in section
twenty of this article. Telecommunication services shall be
sourced in accordance with section nineteen of this article.
§11-15B-15. General transaction sourcing rules.
(a) General rule. - For purposes of articles fifteen and
fifteen-a of this chapter, the retail sale, excluding lease or
rental, of a product shall be sourced as follows:
(1) When the product is received by the purchaser at a
business location of the seller, the sale is sourced to that
business location.
(2) When the product is not received by the purchaser at a
business location of the seller, the sale is sourced to the
location where receipt by the purchaser or the purchaser's
designated donee occurs, including the location indicated by
instructions for delivery to the purchaser or donee, known to the
seller.
(3) When subdivisions (1) and (2) of this subsection do not
apply, the sale is sourced to the location indicated by an address
for the purchaser that is available from the business records of
the seller that are maintained in the ordinary course of the
seller's business when use of this address does not constitute bad
faith.
(4) When subdivisions (1), (2) and (3) of this subsection do
not apply, the sale is sourced to the location indicated by an
address for the purchaser obtained during the consummation of the
sale, including the address of a purchaser's payment instrument, if
no other address is available, provided use of this address does
not constitute bad faith.
(5) When none of the previous subdivisions of this subsection
apply, including the circumstance in which the seller is without
sufficient information to apply the previous rules, then the
location will be determined by the address from which tangible
personal property was shipped, or computer software delivered
electronically was first available for transmission by the seller,
or from which the service was provided: Provided, That any location
that merely provided the digital transfer of the product sold is
disregarded for these purposes.
(b) Lease or rental. -- The lease or rental of tangible
personal property or custom software, other than property
identified in subsection (c) or (d) of this section, shall be
sourced as follows:
(1) For a lease or rental that requires recurring periodic payments, the first periodic payment is sourced the same as a
retail sale in accordance with the provisions of subsection (a) of
this section. Periodic payments made subsequent to the first
payment are sourced to the primary property location for each
period covered by the payment. The primary property location is as
indicated by an address for the property provided by the lessee
that is available to the lessor from its records maintained in the
ordinary course of business, when use of this address does not
constitute bad faith. The property location may not be altered by
intermittent use at different locations, such as use of business
property that accompanies employees on business trips and service
calls.
(2) For a lease or rental that does not require recurring
periodic payments, the payment is sourced the same as a retail sale
in accordance with the provisions of subsection (a) of this
section.
(3) This subsection does not affect the imposition or
computation of sales or use tax on leases or rentals based on a
lump sum or accelerated basis, or on the acquisition of property
for lease.
(c) Vehicles. -- The lease or rental of motor vehicles,
trailers, semi-trailers or aircraft that do not qualify as
transportation equipment, as defined in subsection (d) of this
section, shall be sourced as follows:
(1) For a lease or rental that requires recurring periodic
payments, each periodic payment is sourced to the primary property location. The primary property location is indicated by an address
for the property provided by the lessee that is available to the
lessor from its records maintained in the ordinary course of
business, when use of this address does not constitute bad faith.
This location shall not be altered by intermittent use at different
locations.
(2) For a lease or rental that does not require recurring
periodic payments, the payment is sourced the same as a retail sale
in accordance with the provisions of subsection (a) of this
section.
(3) This subsection does not affect the imposition or
computation of sales or use tax on leases or rentals based on a
lump sum or accelerated basis, or on the acquisition of property
for lease.
(d) Sale or lease or rental of transportation equipment. -
The retail sale, including lease or rental, of transportation
equipment is sourced the same as a retail sale in accordance with
the provisions of subsection (a) of this section, notwithstanding
the exclusion of lease or rental in said subsection.
"Transportation equipment" means any of the following:
(1) Locomotives and railcars that are utilized for the
carriage of persons or property in interstate commerce.
(2) Trucks and truck-tractors with a gross vehicle weight
rating of ten thousand pounds or greater, trailers, semitrailers or
passenger buses that are:
(A) Registered through the international registration plan; and
(B) Operated under authority of a carrier authorized and
certificated by the United States department of transportation or
another federal authority to engage in the carriage of persons or
property in interstate commerce.
(3) Aircraft that are operated by air carriers authorized and
certificated by the U. S. department of transportation or another
federal or foreign authority to engage in the carriage of persons
or property in interstate or foreign commerce.
(4) Containers designed for use on and component parts
attached or secured on the items set forth in subdivisions (1)
through (3), inclusive, of this subsection.
(e) Exceptions. -- Subsections (a) and (b) of this section
shall not apply to the following goods or services:
_____(1) Telecommunications services, as set out in section twenty
of this article, shall be sourced in accordance with section
nineteen of this article; and
_____(2) Until the first day of January, two thousand six, a seller
who is primarily engaged in the retail sale of cut flowers and
flower arrangements taking the original order to sell tangible
personal property shall source the sale to the place where order
was taken. For purposes of this exception, "primarily" means more
than fifty percent of the seller's total gross sales or receipts
are derived from that activity. In determining if a seller is
primarily a florist, the total sales price of cut flowers and
floral arrangements includes separately stated delivery or service charges. After the thirty-first day of December, two thousand
five, sales by florists shall be subject to the general sourcing
rules stated in subsection (a) of this section.
_____(f) Product defined. -- As used in subsection (a) of this
section, "product" includes tangible personal property, custom
software or a service, or any combination thereof.
§11-15B-19. Telecommunications sourcing rule.
(a) Except for the defined telecommunication services in
subsection (c) of this section, the sale of telecommunication
service sold on a call-by-call basis shall be sourced to: (1) Each
level of taxing jurisdiction where the call originates and
terminates in that jurisdiction; or (2) each level of taxing
jurisdiction where the call either originates or terminates and in
which the service address is also located.
(b) Except for the defined telecommunication services in
subsection (c) of this section, a sale of telecommunication service
sold on a basis other than a call-by-call basis is sourced to the
customer's place of primary use.
(c) The sale of the following telecommunication services shall
be sourced to each level of taxing jurisdiction as follows:
(1) A sale of mobile telecommunication service, other than
air-to-ground radiotelephone service and prepaid calling service,
is sourced to the customer's place of primary use, as required by
the Mobile Telecommunications Sourcing Act.
(2) A sale of post-paid calling service is sourced to the
origination point of the telecommunications signal as first identified by either: The seller's telecommunications system, or
information received by the seller from its service provider, where
the system used to transport the signal is not that of the seller.
(3) A sale of prepaid calling service is sourced in accordance
with section fifteen of this article: Provided, That in the case of
a sale of mobile telecommunication service that is a prepaid
telecommunication service, the rule provided in subdivision (5),
subsection (a), section fifteen of this article shall include, as
an option, the location associated with the mobile telephone
number.
(4) A sale of a private communication service is sourced as
follows:
(A) Service for a separate charge related to a customer
channel termination point is sourced to each level of jurisdiction
in which the customer channel termination point is located.
(B) Service where all customer termination points are located
entirely within one jurisdiction or levels of jurisdiction is
sourced in the jurisdiction in which the customer channel
termination points are located.
(C) Service for segments of a channel between two customer
channel termination points located in different jurisdictions and
which segment of channel are separately charged is sourced fifty
percent in each level of jurisdiction in which the customer channel
termination points are located.
(D) Service for segments of a channel located in more than one
jurisdiction or levels of jurisdiction and which segments are not separately billed is sourced in each jurisdiction based on the
percentage determined by dividing the number of customer channel
termination points in the jurisdiction by the total number of
customer channel termination points.
§11-15B-20. Telecommunication sourcing definitions.
For the purpose of section nineteen of this article, the
following definitions apply:
(1) "Air-to-ground radiotelephone service" means a radio
service, as that term is defined in 47 CFR 22.99, in which common
carriers are authorized to offer and provide radio
telecommunications service for hire to subscribers in aircraft.
(2) "Call-by-call basis" means any method of charging for
telecommunications services where the price is measured by
individual calls.
(3) "Communications channel" means a physical or virtual path
of communications over which signals are transmitted between or
among customer channel termination points.
(4) "Customer" means the person or entity that contracts with
the seller of telecommunications services. If the end user of
telecommunications services is not the contracting party, the end
user of the telecommunications service is the customer of the
telecommunication service, but this sentence only applies for the
purpose of sourcing sales of telecommunications services under
section nineteen of this article. "Customer" does not include a
reseller of telecommunications service or for mobile
telecommunications service of a serving carrier under an agreement to serve the customer outside the home service provider's licensed
service area.
(5) "Customer channel termination point" means the location
where the customer either inputs or receives the communications.
(6) "End user" means the person who utilizes the
telecommunication service. In the case of an entity, "end user"
means the individual who utilizes the service on behalf of the
entity.
(7) "Home service provider" means the same as that term is
defined in Section 124(5) of Public Law 106-252 (Mobile
Telecommunications Sourcing Act).
(8) "Mobile telecommunications service" means the same as that
term is defined in Section 124(5) of Public Law 106-252 (Mobile
Telecommunications Sourcing Act).
(9) "Place of primary use" means the street address
representative where the customer's use of the telecommunication
service primarily occurs, which must be the residential street
address or the primary business street address of the customer. In
the case of mobile telecommunications services, "place of primary
use" must be within the licensed service area of the home service
provider.
(10) "Post-paid calling service" means the telecommunication
service obtained by making a payment on a call-by-call basis,
either through the use of a credit card or payment mechanism such
as a bank card, travel card, credit card or debit card, or by
charge made to a telephone number which is not associated with the origination or termination of the telecommunication service. A
post-paid calling service includes a telecommunication service that
would be a prepaid calling service except it is not exclusively a
telecommunication service.
(11) "Prepaid calling service" means the right to access
exclusively telecommunications services, which must be paid for in
advance and which enables the origination of calls using an access
number or authorization code, whether manually or electronically
dialed, and that is sold in predetermined units or dollars of which
the number declines with use in a known amount.
(12) "Private communication service" means a telecommunication
service that entitles the customer to exclusive or priority use of
a communications channel or group of channels between or among
termination points, regardless of the manner in which the channel
or channels are connected, and includes switching capacity,
extension lines, stations and any other associated services that
are provided in connection with the use of the channel or channels.
(13) "Service address" means:
(A) The location of the telecommunications equipment to which
a customer's call is charged and from which the call originates or
terminates, regardless of where the call is billed or paid;
(B) If the location in paragraph (A) of this subdivision is
not known, service address means the origination point of the
signal of the telecommunications services first identified by
either the seller's telecommunications system or in information
received by the seller from its service provider, where the system used to transport the signals is not that of the seller; or
(C) If the location in paragraphs (A) and (B) of this
subdivision are not known, then "service address" means the
location of the customer's place of primary use.
§11-15B-30. Monetary allowances for new technological models for
sales tax collection; delayed effective date.
(a) Monetary allowance under Model I. --
(1) The tax commissioner shall provide a monetary allowance to
a certified service provider in Model I. This allowance shall be in
accordance with the terms of the contract between the governing
board of the streamlined sales and use tax agreement and the
certified service provider. The details of this monetary allowance
shall be developed and provided through the contract process. The
contract shall provide that the allowance be funded entirely from
money collected in Model I.
(2) The contract between the governing board and the certified
service provider may base the monetary allowance to a certified
service provider on one or more of the following:
(A) A base rate that applies to taxable transactions processed
by the certified service provider; or
(B) For a period not to exceed twenty-four months following a
voluntary seller's registration through the agreement's central
registration process, a percentage of tax revenue generated for a
member state by the voluntary seller for each member state for
which the seller does not have a requirement to register to collect
the tax.
(b) Monetary allowance for Model II sellers. -- The monetary
allowance to sellers under Model II may be based on the following:
(1) All sellers shall receive a base rate for a period not to
exceed twenty-four months following the commencement of
participation by a seller. The base rate is set by the governing
board of the streamlined sales and use tax agreement after the base
rate has been established for Model I certified service providers.
This allowance is in addition to any vendor or seller discount
afforded by each member state at the time.
(2) Following the conclusion of the twenty-four month period,
a seller will only be entitled to a vendor discount afforded under
each member state's law at the time the base rate expires.
(c) Monetary allowance for Model III sellers and all other
sellers that are not under Models I or II. -- A monetary allowance
to sellers under Model III and to all other sellers registered
under the agreement that are not sellers under Model I or II may be
allowed based on the following:
(1) For a period not to exceed twenty-four months following a
voluntary seller's registration through the agreement's central
registration process, a percentage of tax revenue generated for a
member state by the voluntary seller for each member state for
which the seller does not have a requirement to register to collect
the tax; and
(2) Vendor discounts afforded under each member state's law.
(d) Prohibition on allowance or payment of monetary
allowances. -- Notwithstanding subsections (a), (b) and (c) of this section, the tax commissioner may not allow any vendor, seller or
certified service provider any monetary allowance, discount or
other compensation for collecting and remitting the taxes levied by
articles fifteen and fifteen-a of this chapter, or for making and
filing the periodic reports required by this article, or articles
fifteen and fifteen-a of this chapter, until this section is
amended by the Legislature the cost of collection study required by
the agreement is completed and the monetary allowances are based on
the results of that study, or on requirements of federal law
requiring remote sellers to collect sales and use taxes for states
that have signed the agreement.
(e) Findings and declarations. - The Legislature finds that
the vendor cost of collection study was not completed for use by
the governing board of the streamlined sales and use tax agreement
or this Legislature before this Legislature was asked to authorize
the tax commissioner to sign the streamlined sales and use tax
agreement. Additionally, no preliminary findings or conclusions of
the study regarding vendor costs of collection are available upon
which the tax commissioner or the Legislature can reasonably
project the effect the payment of the monetary allowances provided
for in subsections (a) through (c) of this section will have on net
sales and use tax collections. Because the cost of allowing
monetary allowances under collection Models I through IV may reduce
net sales and use tax collections, at least in the early years of
the agreement, because many states including this state are
experiencing revenue shortfalls, and because the Legislature is constitutionally required to pass a balanced budget, the
Legislature finds and declares that it is both reasonable and
prudent to delay approving this aspect of the agreement until
adequate information does become available and the effect the
monetary allowances will have on West Virginia sales and use tax
collections can reasonably be quantified. The Legislature declares
its support for the streamlined sales and use tax agreement by
adopting in this enactment all substantive changes in West
Virginia's sales and use tax laws necessary for West Virginia's
sales and use tax laws to be in substantial compliance with the
streamlined sales and use tax agreement. Additionally, the
Legislature declares that it can quickly act to reconsider
subsection (d) of this section once the requisite information
becomes available.
§11-15B-32. Effective date.
(a) The provisions of this article, as amended or added during
the regular legislative session in the year two thousand three,
shall take effect the first day of January, two thousand four, and
apply to all sales made on or after that date and to all returns
and payments due on or after that day, except as otherwise
expressly provided in section five of this article.
(b) The provisions of this article, as amended or added during
the second extraordinary legislative session in the year two
thousand three, shall take effect the first day of January, two
thousand four, and apply to all sales made on or after that date.
(c) The provisions of this article, as amended or added by this act of the Legislature, shall apply to all sales made on or
after the date of passage of this act in the year two thousand
four.
§11-15B-36. Relief from certain liability for state and local
taxes.
(a) General. -- Sellers and certified service providers
registered under the streamlined sales and use tax agreement to
collect sales and use taxes imposed by this state or the economic
opportunity development district excise tax imposed by a local
jurisdiction of this state who charged and collected the incorrect
amount of sales or use taxes or district excise taxes resulting
from the seller or the certified service provider relying on
erroneous data provided by this state on tax rates, boundaries or
taxing jurisdiction assignments shall be held harmless by the tax
commissioner and the local taxing jurisdiction.
(b) Exception. -- A state that is a member of the streamlined
sales and use tax agreement and provides an address-based system
for assigning taxing jurisdictions pursuant to subsection (G),
section three hundred five of the agreement subdivision (4),
subsection (d), section thirty-five of this article, or pursuant to
the federal Mobile Telecommunications Sourcing Act, is not required
to provide liability relief for errors resulting from reliance on
information provided by the member state under subsection (F) of
section three hundred five subdivision (3), subsection (d), section
thirty-five of this article.
Following points of inquiry to the President, with resultant responses thereto,
On motion of Senator Sprouse, the bill (Eng. H. B. No. 4349),
as amended, was advanced to third reading with the right for
further amendments to be considered on that reading.
The Senate proceeded to the tenth order of business.
The following bills on first reading, coming up in regular
order, were each read a first time and ordered to second reading:
Com. Sub. for Senate Bill No. 214, Authorizing board of
landscape architects to set certain fees by rule.
Senate Bill No. 402, Relating to authority of board of risk
and insurance management to promulgate legislative rules.
Com. Sub. for Senate Bill No. 410, Providing educational
opportunities to certain children of deceased military; removing
in-state requirement.
Com. Sub. for Senate Bill No. 513, Relating to jobs investment
trust board.
Senate Bill No. 532, Repealing section of code relating to
inspection of jails.
Senate Bill No. 574, Allowing commissioner to sell liquor
warehouse under certain circumstances.
Senate Bill No. 575, Continuing motor vehicle dealers advisory
board.
Senate Bill No. 576, Continuing state rail authority.
Senate Bill No. 577, Continuing board of registration for
foresters.
Senate Bill No. 578, Continuing design-build board.
Senate Bill No. 579, Relating to sex offender registration.
And,
Eng. House Bill No. 4011, Bringing the West Virginia personal
income tax act into conformity with the federal income tax.
The Senate proceeded to the eleventh order of business and the
introduction of guests.
The Senate then proceeded to the twelfth order of business.
Remarks were made by Senators Facemyer, Sprouse, Deem and
Bowman.
Thereafter, at the request of Senator Sprouse, and by
unanimous consent, the remarks by Senator Facemyer were ordered
printed in the Appendix to the Journal.
At the request of Senator McCabe, unanimous consent being
granted, the Senate returned to the eleventh order of business and
the introduction of guests.
The Senate again proceeded to the twelfth order of business.
Remarks were made by Senators Hunter and Kessler.
On motion of Senator Chafin, leaves of absence for the day
were granted Senators Bailey and Edgell.
Pending announcement of meetings of standing committees of the
Senate,
On motion of Senator Chafin, the Senate adjourned until
Monday, February 23, 2004, at 11 a.m.
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